1. 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

2. 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

3. WHAT IS WITNESS INTIMIDATION?2

4. Facebook 3

5. Redacted Police Paperwork Witness4

6. 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

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

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

9. 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

10. 9

11. INITIAL MEETING 10

12. 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

13. 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

14. 13

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

16. 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

17. ARREST TO ARRAIGNMENT 16

18. 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

19. DISCOVERY 18

20. 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

21. DEFENSE DISCOVERY 20

22. DEFENSE DISCOVERY 21

23. HEARINGS AND TRIAL 22

24. EQUIPPING JUDGES WITH APPLICABLE LAW
Pennsylvania Bench Book
Forum on witness intimidation
Bench Book suggested
Bench Book published
Second Edition published
2018 – Third Edition to be published 23

25. 24

26. COURTHOUSE AND COURTROOM SECURITY25

27. 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

28. 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

29. DISABLE USE IN COURTROOM28

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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 et seq.
Expenditures increased significantly
FY14: $635,000,000
FY17: $2,573,000,000
National Association of VOCA Assistance Administrators (NAVAA) 34

36. 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

37. 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