Witness Protection

Many police officers believe the investigation, and their work, is finished when the defendant is arrested and the case is submitted to the prosecutor’s office. In some cases, that may be true, but in many others, especially in gang-related cases, the work may just be starting.

In gang cases, one issue is constant: fear and intimidation that has the potential to cause the case to fail. The witnesses are often scared and don’t want to testify because they fear for their safety. Reluctant or terrified witnesses routinely fail to appear in court. When they do, they often recant their earlier testimony or statements to police. Without the witness(es), you don’t have a case—at least one that can be proved beyond a reasonable doubt to a jury. If a critical witness is afraid, a criminal, or a friend or family member of the defendant, options are available, and you should know what they are.

Clearly, the best approach in any gang case is to convince the witnesses to cooperate willingly. When that doesn’t work, however, understanding the relevant law and the resources that are available to assist will help reluctant witnesses understand the importance of the case and the power of the court in compelling their appearance and testimony.

One of the most difficult problems facing law enforcement is the power of gang members and other criminals to thwart the criminal justice system by threatening and intimidating the witnesses against them. In many gang cases, I’ve had serious concerns that if I did nothing to help a victim or witness, harm was a very realistic possibility. This isn’t just a U.S. problem; it’s an international problem, and although it may seem insurmountable, we do have legal recourse and witness protection programs that we can use to enable witnesses to appear in court and testify, thereby convicting thousands of violent gang members who might otherwise go free.

Case Example
A recent case of mine serves as a good example of the different types of witnesses we encounter in gang cases. I had a case with two primary victim/witnesses: one cooperative but fearful because of clear threats she received, and the other uncooperative because of his criminal lifestyle. In this case, I relocated one victim, and arrested and held the other as a material witness until he testified.

The case involved a gang member who was looking to kill a rival gang member and went looking for the person at addresses where he thought the person lived. The gang member went to the first house, but didn’t find the person he wanted to kill. Instead, he found an innocent female. The gang member pulled a gun out of his waistband, pointed the gun at her head and said he would “kill her” if she didn’t tell him where he could find his intended target.

The victim, who did not know the location of the intended target, was terrified. She was crying and urinated in her pants because she was so afraid. While holding the gun on the victim, the gangster committed a sexual assault on her before he told the victim that she was going to have to go with him. The gang member took the female at gunpoint and made her drive with him to another residence where the gangster thought the target might be. He forced the female victim to knock on the door.

The second victim in this case answered the door and was immediately struck in the head with the gun hard enough to knock him off his feet. The gangster put the gun under the male victim’s chin and threatened to kill him, pistol-whipped him several times and said he would die if he didn’t tell him where his intended target was hiding. The intended target was not at the residence. After assaulting the male victim, the gangster stole property from the residence, took the first victim with him and left the second victim beaten and bloody.

As the gangster drove around with the female victim, he threatened to kill her and her family if she reported anything to the police, telling her he was a member of a local gang and that if she called the police and said anything about what happened, they’d get her. The gangster eventually pulled over and released her on the side of the road.

After a week, the female victim did tell someone; the police responded, took a report from the female victim, identified the second victim, and located and arrested the gang member involved. Both victims positively identified the defendant in photo lineups.

Follow-up with the Male Victim
I made contact with the male victim, who initially said he remembered the incident well, and he gave me a detailed statement. I served a subpoena to the male victim; he didn’t appear in court as ordered in the subpoena. I spoke to the victim on the phone following his failure to appear, and he told me that he now had no intention of coming to court. He was now uncooperative, and he said that he knew the perpetrator to be a violent person, the incident was traumatic, and he didn’t see how he could help by providing testimony about what had happened to him.

In cases like this, when a witness refuses to appear despite a subpoena, they can be subject to arrest for contempt. Contempt is defined as an act committed either before or out of the presence of the court, in some manner preventing the court from discharging its duty in an orderly and timely manner. Before contempt can be pursued against a witness who fails to appear, the subpoena itself must indicate that the failure to comply is punishable by contempt, and the witness must be personally served with the subpoena. Tacking it to their front door or mailing it to them is not sufficient service. Once service has been accomplished, willful disobedience is contempt.

In this case, the witness’s actions and statements led me to believe the victim had demonstrated his unwillingness to cooperate with the legal process and that the only way to guarantee his appearance in court was to place him in custody as a material witness and have him produced in court as a witness in the proceedings against my gang defendant. I drafted a material witness warrant, had it signed by the judge, located and arrested the witness, and booked him in jail. It’s important to note that when witnesses are arrested, they aren’t housed with regular inmates, but are held in protective custody.

In other cases, a subpoena may be enough to get a witness to appear, but getting them to talk and testify is another issue entirely. Some witnesses have been served and take the stand, only to have contempt for the court when they do such things as refuse to be sworn in as a witness or, once sworn, refuse to answer the questions being asked.

Criminal contempt proceedings reinforce the integrity of the judicial process and give a subpoena some weight, but this method does not typically result in the level of cooperation we desire. Many witnesses compelled to testify recant, lie or commit flagrant perjury when they still live in the neighborhood where the gang crime occurred or still associate with the defendant or his/her friends and family.

The law has long recognized that the duty to disclose knowledge of crime rests on all citizens. It’s so vital that one known to be innocent may be detained in the absence of bail as a material witness. The California material witness statute passes federal and state constitutional muster because its provisions adequately balance the witness’s right not to be detained with the state’s right to compulsory process for the attendance of witnesses. A material witness is subject to detention not because they’re suspected of a crime, but because they have knowledge of a crime and because there’s adequate doubt whether the witness will attend the trial.

The court considered the following factors prior to issuing my material witness warrant, including the nature of the charges, the nature of the proposed testimony, the length of the proposed detention, evidence relevant to whether the witness would or would not appear and testify, the age and maturity of the witness, harm to the witness and their family flowing from incarceration, the witness’s financial resources, circumstances of any continuance and whether steps short of incarceration were feasible.

Note: Convincing or forcing reluctant witnesses to cooperate may be what is required if the witness’s failure to appear will cause the case to be dropped or let a dangerous gang member be released into the community because of fear on the part of the witness, not because they’re innocent. The key to holding many gang members responsible for their crimes is leverage over the witnesses. In some cases we can be proactive, either relocate the witness in advance to protect them and make them feel comfortable to go to court, or take them into custody to make sure we have them when needed.

For example, California Penal Code Section 879 states in substance that if there’s a reason to believe any witness will not appear and testify, the court may order the witness to post bond in the amount the court deems appropriate to secure the witness’s appearance at time of trial. Whether or not they are frequently used, most states have similar tools to deal with reluctant witnesses. The police and investigators must provide evidence: Maybe when serving a subpoena to the witness, they told you, “There’s no way I am coming to court,” “I won’t be around on this date; I’ll be out of state with my family,” or “I have no intention of showing up.” Once the police officer or investigator has met the burden of proof, the prosecutor is free to ask for a bail amount they believe is appropriate. Witnesses who fail to agree to the terms of the agreement can be taken into custody.

We typically use the potential contempt order to gain control over the witness and secure their presence and testimony in court.

Follow-up with the Female Victim
The female victim in this case does not represent the same type of reluctant witness as the uncooperative male victim described above. She was cooperative. She wanted to do the right thing and hold the suspect accountable, but had serious and legitimate concerns for her safety. Based on the severity of the crime, the threats made, the suspect’s gang affiliation and facts that illustrated the suspect knew where the victim lived, my assessment was that relocation was appropriate.

I’ve investigated hundreds of gang cases while working as a gang investigator, and I’ve personally relocated more than 60 witnesses in similar cases. It’s for witnesses like this female that witness protection programs were created in many states. When a witness or victim is the subject of a threat, the police must conduct an assessment of the threat to decide what the appropriate response should be. Responses to threats must be swift if they are to be addressed effectively. If they’re not and if we don’t follow proper procedure and exercise as much care as possible, we open ourselves up to significant liability. More importantly, a witness may be injured or killed as a result of their cooperation.

Duty to Warn of Threat
Tarasoff v. Regents of University of California is the prevailing law that mandates our duty as law enforcement officers to warn witnesses in gang cases if we receive information regarding a threat made against them. The California Supreme Court established a precedent in 1976 that translates today to any law enforcement officer who receives information of threats made against a witness. In these cases, the law enforcement officer must notify the potential victim about the threat and take reasonable steps to protect them. If that’s not done, the agency and officer may be exposed to civil liability or other sanctions, and, of course, your witness may be killed, injured or dissuaded from testifying, resulting in the gang member getting away with the crime. The Tarasoff case has been followed by similar rulings in many other states. Check with legal authorities in your area to determine the specifics.

It’s important to explain to citizens that you do what you can as a police officer to solve the gang crimes in your area to protect the community, but you can’t solve every crime by yourself. You need help from the community. Most gang cases require someone to come forward and do the right thing, to provide information that will help arrest and prosecute the offender or offenders. Witness management, protection and relocation are a big part of virtually every gang case. Often, witnesses are gang members and criminals in their own right. They have credibility issues and may be uncooperative because of fear for their safety or loyalty to the gang.

Threat Assessment
What is a threat? Why do many witnesses change their stories and not want to testify, causing many a gray hair for the typical gang investigator and gang prosecutor? Often, it’s due to threats being made against the witness or their family. Threats against witnesses and victims in gang cases may be written, spoken—or may just be a gesture.

You may have to conduct a threat assessment or an analysis of the potential for harm to come to your witness and take the appropriate action. An assessment includes an analysis as to the extent the person making the threat appears to have the resources, intent and motivation to carry out the threat and how credible and serious the threat itself is.

Types of threats in gang cases typically fall into four categories: 1) direct threat (i.e., a specific act against a specific target; perhaps your witness was shot at); 2) indirect threat: one that is vague, unclear, ambiguous (word on the street); 3) veiled threat: one that strongly implies, but does not explicitly threaten, violence (e.g., “You shouldn’t testify; you’ll probably live longer.”); and 4) conditional threat: one that warns a violent act will follow unless certain demands or conditions are met (e.g., “If you testify, I will kill you and your family.”).

Threats in gang cases can typically be classified by three levels of risk that include: 1) low threat level: one in which information is inconsistent, lacks detail or is implausible, vague or indirect, and the content suggests the person is unlikely to carry out the threat; 2) medium threat level: at this level the threat is more direct and concrete, and evidence suggests that the suspect has given the situation thought, but there’s no strong indication that the suspect has taken preparatory steps; 3) high threat level: at this level the threat is direct, specific and plausible, and evidence suggests that steps have been taken to carry out the threat.

We must evaluate the reputation of those representing the threat. Are they a hardcore gang member, a narcotics trafficker or a low-level criminal? What is their history? We can evaluate the potential by reviewing police reports, rap sheets, police databases, and parole and probation files to help us assess what actions we should take.

Document the Threat
Once the threat has been assessed, the threats must be properly documented. It’s a crime to make threats against witnesses and or dissuade witnesses from testifying. In cases where a valid threat has been identified, witness protection and relocation require a comprehensive assessment of the threat or danger to the witness to justify the use of official resources. In addition, a new crime case may need to be generated and arrests made if you develop probable cause.

Know Your Witnesses
Once the decision has been made to protect and relocate a person, the person must agree to fully cooperate and comply with the reasonable demands of the police and investigators on the case. They must agree to testify truthfully, obey all laws, avoid detection, comply with all legal and civil obligations, and cooperate with officials. They must accept these conditions to obtain our help. If they don’t accept, why waste our time?

It’s also a critical component to evaluate your witness. What is your witness’s history? Do they have pending cases or outstanding warrants? Are they a drug user? Do they have chronic health problems (e.g., need for dialysis, severe asthma) that may affect where you can move them? What’s their financial situation? Where is the witness employed and for how long? Is the witness receiving public assistance, SSI for mental or physical disability, or money from family or other sources?

What’s their current housing/living situation? Are they homeless, a renter or a home owner. Do we need to help sell property? Are they occupying space for free or receiving Section 8 or HUD assistance?

You must also evaluate the size of the family because this affects what resources you’ll need to accomplish the move.

Keep Complete Records
Get the witness to sign for every payment. Often, your witness is a criminal, in the same or a rival gang as the defendant, which is why they were a witness. If they’re a criminal, you must remember that they will lie if they get mad at you.

Receipts for all benefits provided are required even for cooperative witnesses. All benefits given to a witness must be recorded in some type of benefits report, which will be released in the discovery process. The defense has a right to know about all benefits provided to a witness.

Receipts are also required for audit purposes.

Justice Assured
The intent of witness protection is to ensure justice is done and that criminals are held accountable for their actions. A problem in California and elsewhere is that funds to protect and relocate witnesses are limited, and most local programs are underfunded and fail to meet the demand. Even as the problem of witness intimidation has grown worse, state funding—the main source of financial help for witnesses—has been significantly reduced in many jurisdictions. Another problem with gang cases—the primary cases in which witness intimidation is a key issue—is that court cases often drag on for a year or more, much longer than the majority of witness protection programs will allow.

It’s very common for criminals to try to intimidate witnesses to prevail at trial by making witnesses fail to appear or recant because they’re afraid. As a precaution, prosecutors in many jurisdictions are fighting to keep witnesses’ names from being said aloud in court. This is a difficult task and involves a clash of rights, pitting the safety of the witness against a defendant’s rights to a fair trial and to confront witnesses against them.

To try to reduce threats against witnesses, prosecutors take great pains to strip public files of information identifying witnesses and victims, such as addresses and phone numbers. Often, courts require people who wish to review court records to sign in, turning over a driver’s license or other identification to leave a trail showing who has looked at a particular file. This may prove useful should a witness be subjected to threats. Prosecutors may ask defense lawyers not to give their clients copies of witness statements, simply allowing defendants to read them instead. But this is done on the honor system and not always adhered to. Circulating witness statements has become a common tactic used by gangs to create fear in witnesses. When the defendant’s fellow gangsters read the reports and have paper that shows the “snitching” in black and white, intimidation and threats typically increase.

As a supervisor, take advantage of local witness protection programs to help your officers solve crimes. Federal witness protection programs, including elaborate changes of identity and relocation of families, are well publicized. However, critics say local prosecutors often fall far short of those standards and that witnesses who feel endangered may refuse to testify, allowing criminals to go free. Ensure you have a solid understanding of the programs in your area.

By taking advantage of witness protection programs, police agencies can keep witnesses safe and obtain justice for the victims. We also significantly limit our potential liability, lawsuits, negative press and lost cases when we think about the safety of witnesses from the onset of cases and keep them as safe as possible before, during and after the trial.

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