OVERCOMING WITNESS INTIMIDATION INNOVATIVE PROSECUTOR TOOLS AND TECHNIQUES | May 17, 2018 John Delaney First Assistant District Attorney (ret.) Philadelphia District Attorney’s Office Kristine Hamann Executive Director Prosecutors’ Center for Excellence

OBJECTIVES Recognize witness intimidation Work with your communities Improve courthouse and courtroom security Use all tools to protect your witnesses Create a consistent office-wide approach 1

WHAT IS WITNESS INTIMIDATION? 2

Facebook 3

Redacted Police Paperwork Witness 4

CONTINUUM OF CONSEQUENCES Refuses to speak with police Refuses to appear in court Complies with subpoena but refuses to testify Testifies and claims loss of memory Testifies and recants earlier statement Testifies falsely Injured or killed 5

WHY? DISTRUST of law enforcement: personal or general FEAR Neighborhood climate Indirectly threatened Directly threatened Injured ALLIANCE with perpetrator: personal, familial, group, neighborhood 6

PULL EVERY LEVER Community relationships Witness “Protection” Victim/witness advocates Grand Jury Legal Strategies Vigorous investigation and vertical prosecution of intimidation Judicial action 7

ESTABLISH AND MAINTAIN COMMUNITY RELATIONSHIPS DA staff participation in community events Community Zones Community Action Centers Community participation in sentencing Meet with groups about cooperation Partner with community-based agencies

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INITIAL MEETING 10

WITNESS-ORIENTED APPROACH Assign an advocate as early as possible Provide social services (DV model) Provide counseling (post traumatic stress) Emergency cell phone Constant contact Engagement by prosecutor 11

WITNESS-ORIENTED APPROACH Get all contact information Get all means of communication “next best friend” Do a risk assessment Do a safety plan Identify ”danger zones” Discuss limiting use of social media 12

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VIGOROUS EARLY INVESTIGATION Jail/Prison Calls Visitor logs Cell searches Phone records Informants Surveillance Social media 14

VIGOROUS PROSECUTION Specially assigned prosecutor/vertical prosecution Bring witness intimidation charges – whenever possible, consolidate with main case Use of the grand jury Secrecy No defendant Delayed discovery 15

ARREST TO ARRAIGNMENT 16

ARRAIGNMENT Do not use name of witness Initials “person whose identity is known to the affiant” Redact: affidavit for arrest warrant, search warrant, charging document High bail Order of protection/condition of bail 17

DISCOVERY 18

REDACTION AND DELAYED DISCLOSURE All witness identifiers Search warrant affidavit Police paperwork Photographs and videos (body worn cameras) Delay discovery Judicial order to limit defendant’s access to discovery 19

DEFENSE DISCOVERY 20

DEFENSE DISCOVERY 21

HEARINGS AND TRIAL 22

EQUIPPING JUDGES WITH APPLICABLE LAW Pennsylvania Bench Book 2007 - Forum on witness intimidation 2009 - Bench Book suggested 2011 - Bench Book published 2013 - Second Edition published 2018 – Third Edition to be published 23

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COURTHOUSE AND COURTROOM SECURITY 25

COURTHOUSE AND COURTROOM SECURITY Prepare courthouse staff Courthouse announcements Screening at courtroom door Safe waiting areas Separating constituencies Law enforcement in courtroom Press – make sure they don’t reveal identity of a witness 26

PREVENTING TRANSMISSION FROM OR RECORDING IN COURTROOM Ban possession or use in courthouse and courtroom Courtroom announcement: use without judicial permission will result in confiscation and contempt 27

DISABLE USE IN COURTROOM 28

WITNESS PREPARATION Getting into and out of the courthouse/courtroom Safety outside the courtroom Stay out of “danger zone” Check social media Need for relocation For trial Forever 29

MOTIONS IN LIMINE Evidence: Prior acts of intimidation Forfeiture by wrongdoing Admissibility of witness’s fear of testifying Anonymous witness Controlling the courtroom Closing Courtroom 30

COURTROOM CLOSURE Waller v Georgia, 467 US 39 (1984) Party seeking closure must advance overriding interest that is likely to be prejudiced Closure must be no broader than necessary Trial court must consider reasonable alternatives Must make factual findings, on the record, adequate to support the closure 31

RELOCATION Use an investigator for this Who qualifies and when? Have pre-existing protocols Temporary relocation Permanent relocation Moving expenses and assistance Rental costs Storage Related issues: family court, child protective services, school Don’t over-promise and under-deliver 32

COORDINATED APPROACH Legal expert Assign an investigator Train legal and support staff Track witness intimidation Design of office Partner with the courts, police, hospitals, social services 33

HOW TO PAY FOR THIS? Victims of Crime Act (VOCA) funding Sole sourced by federal criminal fines, forfeitures and assessments Purposes: 34 U.S.C. Sec. 20101 et seq. Expenditures increased significantly FY14: $635,000,000 FY17: $2,573,000,000 National Association of VOCA Assistance Administrators (NAVAA) http://www.navaa.org/budget/index.html#background http://www.navaa.org/statedirectory.html 34

SUMMARY Anticipate and recognize witness intimidation Build relationships with communities Partner with everyone who can help Use every available tool Be victim and witness centered 35

John Delaney, First Assistant DA (ret.), Philadelphia DA’s Office Webinar Speakers: John Delaney, First Assistant DA (ret.), Philadelphia DA’s Office Kristine Hamann, Executive Director, Prosecutors’ Center for Excellence National Resource and Technical Assistance Center for Improving Law Enforcement Investigations (NRTAC) centerforimprovinginvestigations.org | crimegunintelcenters.org