Responses to the Problem of Witness Intimidation
Analyzing your local problem will give you a better understanding of the factors that contribute to it. Once you have analyzed your local problem and established a baseline for measuring effectiveness, you can consider possible responses to the problem.
The following response strategies will provide a foundation for addressing your particular intimidation problem. These strategies are drawn from a variety of studies and police reports. Several strategies may apply to your local problem. It is critical that you tailor responses to local circumstances and that you can justify each response based upon reliable analysis. In most cases, an effective strategy will involve several different responses. Because law enforcement alone is seldom effective in reducing or solving the problem, do not limit yourself to considering only what police can do;
rather, carefully consider whether others in your community share responsibility for the problem and whether they can help respond to it.
General Considerations for an Effective Response Strategy
- Forming multi-agency partnerships. The appropriate party to address the threat of witness intimidation may change as a case moves through the criminal justice system. For example, whereas police may be responsible for protecting or supporting witnesses at the outset of a case, the responsibility might shift to the prosecutor when the case goes to trial. And depending upon the type of protection required, other agencies may need to become involved as well. For example, public housing, public benefits, and social services agencies may all
have a role to play where circumstances dictate that a witness should be relocated. Hence, planning and implementing a comprehensive program to prevent and address witness intimidation requires multiple actors: an organizing committee of administrators who are authorized to commit agency resources; a team to design program operations; a program administrator; case investigators; victim advocates; and police support.† Unfortunately, shared responsibilities can also result in blurred accountability. For this reason, interagency agreements are sometimes needed to outline each agency’s responsibilities, the services to be provided, the financial ramifications and obligations, and the parameters for allowable expenses and services. Not only do interagency agreements create accountability, but they also make service delivery more coordinated and efficient. Still, such agreements require significant levels of trust between agencies.
- Limiting liability. Some police agencies are hesitant to implement comprehensive witness security programs because they fear that recognizing witness intimidation will create liability in the event that the intimidation is successful and harm befalls the witness. Liability can be limited by in a number of ways, including:
- taking reports of intimidation seriously and engaging in the defined process for protecting witnesses
- promising only those security services that can
reasonably be provided
- documenting all offers of assistance and all efforts to protect witnesses, along with the acceptance or refusal of such assistance
- making sure that witnesses understand the circumstances under which protections will be withdrawn and documenting all decisions to withdraw security.
- Strengthening ties between police and the community. Ideally, community residents will be committed to reporting crime and giving evidence in court; and in return, police will be committed to providing support, information, and protection to potential witnesses. Fostering cooperation on the part of reluctant witnesses is a natural extension of community policing and community prosecution, which focus on engaging residents in preventing and responding to crime. For example, mobile precincts can increase police visibility after a high-profile gang-related crime in an area where intimidation is likely to occur. Storefront precincts can increase the level of contact with residents and make it easier to provide encouragement and support. Community prosecutors can have a visible presence at crime scenes and can network with witnesses to build cases. Sensitivity to fear of intimidation can create trust and a sense that police recognize why some residents may be afraid to cooperate.†
Efforts to develop trust and to communicate understanding can also be enhanced by outreach efforts designed to educate residents about witness intimidation and to provide information about related services. Outreach efforts should involve multiple agencies including police, prosecutors, housing and other social service agencies, federal law enforcement agencies, the U.S. Attorney, and victim advocacy groups. Because perceptions of the likelihood and severity of intimidation are often exaggerated, outreach is essential to minimize irrational fears and to provide reliable information. Outreach efforts are also one of the only ways to reach witnesses whose fear prevents them from making any contact with the police at all. The most effective message is one that draws a connection between serving as a witness and preventing drug dealers and gang members from terrorizing communities.
Finally, outreach is particularly essential in Asian communities and in communities with recent or illegal immigrants. These residents may not be familiar with the criminal justice process and may need both information and encouragement to participate in it. Matching the cultural and linguistic skills of police and other outreach personnel to the target community can also encourage cooperation.
- Assessing the risk of intimidation. The level of intimidation experienced by a witness should dictate the type and intensity of services provided by police, prosecutors, and other agencies. Standardized risk assessments will ensure that these decisions are made consistently, objectively, and fairly. In the United Kingdom, classification as a vulnerable or intimidated witness is based upon a number of factors: characteristics of the witness, such as age, gender, and physical and mental condition; the nature of the original offense; the relationship between the witness and the offender; the nature of the evidence the witness is able to provide; the characteristics of the defendant, such as criminal history, access to firearms, and connections to criminal networks; and the nature of any direct threats. Assessments should be conducted periodically to determine whether the level of risk has increased or decreased and whether current protections are sufficient. Sharing the results of risk assessments will provide witnesses with a realistic understanding of potential dangers and allow them to make informed decisions about the types of protections they will commit to using.
While risk assessments are useful for allocating resources, they may inadvertently invalidate the fears and anxieties of witnesses who do not meet the criteria for more intensive forms of assistance. Further, most
intimidation experiences are too complex for standardized
risk assessment instruments to be useful.
- Choosing the best strategy. Criminal prosecutions typically serve several purposes: although they are intended to do justice in a particular crime, they often also serve as a means of addressing an underlying problem, such as drug dealing or gang activity. If there is reason to believe that witness intimidation might stymie criminal prosecutions, police should consider whether prosecutions requiring civilian witnesses are the best approach to dealing with a specific crime problem. Other approaches, such as civil remedies involving nuisance abatement or injunctions, can minimize the need to find individuals who are willing to testify in criminal court.
Specific Responses to Reduce Witness Intimidation
- Minimizing the risk of identification witnesses face when reporting crime or offering statements. Particularly in neighborhoods where community-wide intimidation is a factor, residents may hesitate to cooperate with police at the scene of a crime because they fear being labeled as an informant or a “rat.” As a result, methods for reporting crime or offering witness statements that do not make cooperation obvious to observers are sometimes needed. For example, police can refrain from interviewing witnesses at the scene, choosing instead to visit them at their homes in plainclothes after activity on the street has diminished. House-to-house calls that disguise which residents are cooperating can also be helpful, although these additional
visits increase police workloads. Some witnesses may be more comfortable meeting at the precinct or in a neutral place, such as a church or a school.
- Protecting the anonymity of witnesses. Given the risk of threats and intimidation, many witnesses do not want offenders to learn their identities or addresses. Practices such as broadcasting witness names and addresses over the police radio, asking witnesses to identify suspects out in the open, and revealing a witness’s identity to a suspect can all jeopardize witness safety. Limiting the information that is available about witnesses and taking other protective measures can effectively combat these issues.
Protecting the anonymity of witnesses once a case goes to trial can be more problematic. Recent court cases have debated the balance between witness safety and a defendant’s Sixth Amendment right to cross-examination. To date, court opinions have emphasized the rights granted to defendants by the Sixth Amendment of the Constitution. However, numerous measures have been used effectively to limit opportunities for intimidation to occur in the courtroom. These include allowing the witness to give evidence via a closed circuit television link and using screens that allow the judge, jury, and attorneys to see the witness while at the same time shielding the witness from the defendant and members of the public. In some cases, the witness’s name and address are not read aloud in court, making it more difficult for a defendant’s fellow gang-members or criminal associates to target the witness.
- Using alarms and other crime prevention devices. Intruder alarms, motion detectors, cameras, and outdoor lighting can be used to deter intimidators from targeting witnesses at home.† Target hardening devices, such as deadbolt locks, window locks, window bars, grates, and pin locks on sliding doors can also make unauthorized entry more difficult. All of these measures can give intimidated witnesses a greater sense of security in their homes.
When not at home, intimidated witnesses can be equipped with portable personal alarms.† These pendant alarms can be linked to cellular networks so that they work in any location. Some models open a voice channel upon activation so that police can hear what is happening and can reassure the witness that assistance is on the way. Alarms are effective because they assure witnesses that intimidation efforts will receive a rapid response. And because they do not require a constant police presence, personal alarms are less costly than bodyguards, while still providing the same around the clock protection.
- Reducing the likelihood of contact between witnesses and offenders. Most often, acts of intimidation are committed at a witness’s home, workplace, or school, or during the normal course of the witness’s daily activities. Minimizing the opportunities and avenues by which witnesses come into contact with offenders can reduce the incidence of intimidation. For example, witnesses can alter their normal routines by varying the routes taken to work or school and making their schedules irregular and unpredictable. Because many witnesses receive nuisance calls or are contacted by telephone, obtaining an unlisted telephone number and using caller identification and call blocking can provide additional insulation from unwanted contact.
- Transporting witnesses to and from work and school. Many witnesses feel vulnerable when traveling to and from work or school, or while attending to their business in the community. Police escorts during these times can deter offenders from making contact. However, such protection schemes consume significant police resources and may not be feasible for broad application. In addition, the presence of an escort may draw unwanted attention to the witness. Such intensive protection should be reserved for only those witnesses who are at a high risk of serious injury.
- Supporting witnesses. Over the past two decades, federal legislation has established a list of victims’ rights and defined a group of services that federal agencies must provide to crime victims.† Most state and county prosecutors afford crime victims these same rights and services. Such programs can also be implemented by police departments. Departments that offer victim assistance services have found that witnesses are more willing to report crimes and to cooperate with prosecutors; in addition, such witnesses offer more effective testimony and also demonstrate improved recall.
In general, such assistance programs encourage victims to cooperate in the criminal justice process and provide counseling and other services designed to address the emotional impact of victimization. Most offer emergency services, counseling, advocacy and support, claims assistance, and court-related services. Of particular benefit to police in cases involving intimidation, victim advocates typically provide:
- general information about the criminal justice system and what the witness can expect
- specific information regarding the suspect’s arrest status, bail, pretrial release, and court dates
- engagement with victims early in the case and ongoing contact throughout the case.††
Some assistance programs provide 24-hour hotlines with staff trained to counsel victims and to refer emergency situations to police where appropriate. Some police hesitate to work closely with victim advocates, fearing that they will interfere with police procedures, create more work or stress, or will ask inappropriate questions that might compromise the integrity of an investigation. In the past two decades, however, research has shown that victim assistance programs produce a number of benefits to police, including reduced stress, faster return to patrol after responding to a crime scene, and additional and higher-quality evidence. In addition, victim advocates commonly handle all referrals for assistance and services, freeing police from this responsibility. Finally, advocates can calm victims and witnesses and address their emotional needs so that they are better prepared to provide accurate information.
However, overloading victim advocates is a key concern. Their services should be seen as a complement to, not a replacement for, support offered by police. In particular, police should offer reassurance, provide witnesses with cell phones or other direct contact numbers, and maintain ongoing contact to reassess the level of threat and to assuage any other concerns witnesses may have.
- Keeping witnesses and defendants separated at the courthouse. Other than at home, witnesses are most often intimidated in the courthouse, both while waiting to testify and while in the courtroom giving testimony. Not only must witnesses endure a face-to-face encounter with the defendant, but they may also be apprehensive about contact with the defendant’s family and friends. Key danger areas include courthouse entrances, hallways, waiting areas, refreshment areas, and restrooms. Separate waiting rooms and entrances for witnesses and defendants can be useful. Some jurisdictions use an on-call system, in which witnesses are provided with pagers that summon them to the courthouse when they are needed to testify. This practice eliminates the need for witnesses to remain in the courthouse throughout the day, thereby reducing opportunities for intimidation to occur.
Many victim assistance programs provide escort services to and from court; in addition, advocates often remain with witnesses throughout the day and accompany them into public areas of the courthouse. This can be especially effective in gang-related cases, where fellow gang members may attend the trial in large numbers in order to show their solidarity with the defendant and to intimidate witnesses into withholding or changing their testimony. The use of video cameras at courtroom entrances can discourage such practices, as gang members on probation or parole may not want to risk being seen associating with other gang members, lest they violate the conditions of their supervision. Studies in the United Kingdom have found that courthouse-based efforts have effectively reduced the negative effects of intimidation.
- Relocating witnesses. Because it is unusual for offenders to travel outside of their neighborhoods to intimidate witnesses, simply moving a witness to another location can effectively protect him or her from harm. Of course, the key to this strategy is to ensure that the new location remains confidential. Out of boredom, or because they are reluctant to sever ties with friends and family, the witnesses themselves may compromise the secrecy of their new locations. Further, many witnesses require support from numerous agencies, such as public housing and social services. The confidentiality of transactions made on their behalf should be assured in formal interagency agreements.
Police and prosecutors consider relocation to be the most reliable method of protecting witnesses. However, it is costly, time consuming, and requires a significant level of cooperation, from both public agencies and witnesses themselves. Originally, the only type of relocation available was through the Federal Witness Security Program, which involved permanent relocation and complete identity changes for witnesses and their families. Since the inception of the federal program in 1970, less extravagant models have been established by state and local jurisdictions, requiring a less significant commitment of public resources and a less extreme commitment from witnesses. These three types are discussed below.
- Emergency relocation. When danger is imminent, witnesses can be quickly moved to a shelter, hotel, motel, or other facility.† Witnesses are registered using false names and payment is made through an intermediary, not by the police or prosecutor. Witnesses can also be placed with family or friends in other communities or even out-of-state, usually for airfare or the price of a bus ticket. These placements usually only last for a few days or weeks, until the threat has passed or a more permanent solution is found.
- Temporary or short-term relocation. It may be necessary to provide for extended periods of relocation when witnesses remain at risk for longer periods of time. Such short-term programs may be appropriate in jurisdictions where gangs are loosely organized, small, or poorly established. Witnesses can either be placed in rental units or with out-of-state friends or family until the trial is over. Housing witnesses with others can be cost-effective and also offers a source of emotional support that advocates and police cannot provide. These arrangements are most successful when police confirm that the sponsoring family is willing to house the witness, when the witness stays with someone unknown to the offender, when police in the receiving jurisdiction are notified, and when the witness is monitored regularly to ensure that she remains willing to testify.
Most short-term relocation programs cover the cost of relocating, such as rent, security deposit, and moving expenses, and also provide monthly subsidies for utilities, food, clothing, and other living expenses.† Due to the expense involved, financial support is always time-limited, although a witness is usually free to stay in the new location if she so desires. The U.S. Attorney has access to the federal Emergency Witness Assistance Program, in which assistance is limited to only one month.
Short-term relocation strategies are greatly enhanced by partnerships with federal and local public housing authorities.† When a witness already resides in a public housing development, a rapid shift of residence can be made with few complications.†† It may also be beneficial to determine whether the witness is eligible for public housing or other forms of public assistance. The transfer of benefits to the new location can be cumbersome and time-consuming without proper interagency agreements.
- Permanent relocation. The Federal Witness Security Program provides secret and permanent relocation of witnesses and their families to places of safety.† Witnesses must change their identities, sever all contacts with friends and family, and agree to not return to their home communities. In exchange, the program provides safety and security, as well as start-up funding for housing and subsistence until the witness becomes self-supporting. State and local prosecutors can refer witnesses to the program and reimburse the federal government for the cost. Although the program reports high conviction rates and a good safety record, some significant issues must be considered. First, the psychological impact of severing ties and taking on a new identity should not be ignored; participants report high levels of stress, anxiety, and depression. Second, the program only accepts those who provide significant testimony in major cases. Third, because these witnesses often have extensive criminal records themselves, they may pose a danger to the community of relocation. Finally, secret relocation creates obvious difficulties for child custody arrangements and debtors seeking repayment.
The responses discussed above address the symptoms of intimidation (i.e., protecting the intimidated) rather than the causes of intimidation (i.e., deterring the intimidators). By implementing responses that address a culture that tolerates intimidation, police and prosecutors can demonstrate their determination to hold intimidators accountable for their actions. The following responses focus on actions that can be taken in criminal court proceedings.
- Admonishing intimidators. When witnesses or victims tell police they are afraid or have experienced direct intimidation, police can visit the offender and his or her family and friends to caution them regarding their behavior and to explain the laws concerning witness intimidation and obstruction of justice. In court, judges should be vigilant about threatening gestures or actions and should admonish defendants or spectators who display such behaviors. Some jurisdictions educate judges about the types of courtroom intimidation that are exhibited by gang members, such as courtroom packing or wearing black. Although admonishments by police and judges are associated with a reduction in intimidation reported by witnesses, judicial warnings not to contact witnesses may have limited effectiveness in gang and drug-related cases.
- Requesting high bail and no contact orders. In cases where the risk of intimidation is significant, prosecutors can seek high bail to keep defendants in jail and away from witnesses. Where this strategy is used, bond hearings cannot be a mere formality; witness statements and risk assessments should be prepared in advance and presented in court. Prosecutors should seek release conditions that forbid contact with witnesses and victims and make sure that the consequences for violating such conditions are clearly articulated. In some jurisdictions, prosecutors file multiple charges and request a separate bond for each; prosecutors may also file federal charges where appropriate. The effectiveness of this strategy is limited by several factors.
- The time between the original offense and arrest leaves ample opportunity for intimidation to occur.
- Even if the defendant is incarcerated, his or her friends and family can still intimidate witnesses.
- Defendants may be able to contact witnesses by
telephone, even while incarcerated.
- Bond schedules are usually strict and intimidation charges usually only require a small amount to be posted.
- Incarcerating intimidators might not be possible in jurisdictions where jail crowding is a concern or where witness intimidation does not constitute an exception to population caps.
- Increasing penalties for intimidation. In many jurisdictions, witness intimidation is a misdemeanor that results in sentences concurrent with those for the original offense. Thus, offenders who are charged with a violent offense that carries a long sentence may feel they have little to lose by trying to deter witnesses from providing evidence. Making witness intimidation a felony-level offense, increasing maximum sentences, and requiring such sentences to be served consecutively might deter offenders from tampering with witnesses.
- Prosecuting intimidators. The frequency with which offenders are charged with intimidation varies widely from jurisdiction to jurisdiction. Prosecutors can demonstrate their intolerance of witness intimidation and their commitment to resident safety by vigorously prosecuting offenders who harass, threaten, injure, or otherwise intimidate or retaliate against witnesses. Witness intimidation may also be cause to revoke probation or parole.
Responses With Limited Effectiveness
- Increasing patrols in a target area. If police are made aware of the addresses of witnesses who have experienced intimidation, they can increase the frequency of patrol in the surrounding neighborhood. Although the increased visibility may relieve anxiety, the chances of actually intervening in an incident are slim unless police are posted near the witnesses around the clock. Limited resources are better deployed using one of the more targeted measures discussed above.
- Compelling witnesses to testify. Most states have material witness laws that permit the arrest and detention of any person with knowledge of a crime who refuses to provide information in court. Witnesses who refuse to testify are subject to contempt actions and may be prosecuted for obstruction of justice. In theory, compelling witnesses to testify shifts the responsibility from the witness to the prosecutor and may therefore reduce the risk of intimidation and the level of anxiety experienced by the witness. However, others are still likely to believe that the witness has chosen to cooperate. Although efforts to compel a witness to testify may provide him or her with needed confidence, threatening a witness with a contempt citation can also backfire, causing an already reluctant witness to develop a sudden and mysterious loss of memory. Because of concerns for the rights of victims and the lack of proof that compelling witnesses to testify is effective, this should be the option of last resort.