107b american bar association adopted by the house of delegates february 9, 2015



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107B

AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
FEBRUARY 9, 2015
RESOLUTION


RESOLVED, That the American Bar Association urges federal, state, local, territorial and tribal governments to protect the integrity of criminal proceedings, in its truth seeking function, by (1) seeking to hold accountable those who unlawfully intimidate or tamper with victims and prosecution and defense witnesses by any source or means, including the use of social media; and (2) examining practices, procedures, and training, and revising them as needed to assure that victims and witnesses are not improperly intimidated or tampered with by lawyers or law enforcement personnel, and that they receive adequate protection against intimidation and tampering by any person.


Report
Introduction
The resolution addresses the corrupting influence that unlawful and improper intimidation can have on the testimony of witnesses, including victims, in criminal trials and the reality that intimidation undermines the rule of law and the credibility of the judicial process. The possibility that victims and witnesses will be targeted by individuals who seek to influence their testimony is not new. It has been present since the founding of the Nation. The Resolution deals with two related, but different, problems: (1) illegal intimidation, and (2) improper intimidation and tampering.
Illegal Intimidation
In 2012, the House of Delegates approved [then-numbered] Report 107 B, which called upon prosecutors to do more to address and prevent witness and victim intimidation. The 2015 Resolution builds on the 2012 resolution in several ways. It does not focus on prosecutors. Instead, it focuses on governments writ large. Experience has demonstrated that one of the challenges to prosecuting illegal intimidation is persuading the victims and witnesses who are targeted to come forward to report the intimidation. Prosecutors cannot prosecute acts of which they are unaware.
The Resolution envisions that many governmental agencies can play a role in making it more probable that those individuals who seek to intimidate victims and witnesses will be discovered. For example, social service agencies may become aware of acts of intimidation and may be able to persuade clients to report the acts if the agency itself cannot report. Courthouses could display signs encouraging anyone with knowledge of acts of intimidation to report them.
The goal is to expand the responsibility of dealing with intimidation beyond prosecutors to all government actors who can assist with detection and reporting of illegal acts of intimidation. Law enforcement agencies often have more contact with witnesses than do prosecutors and can encourage victims and witnesses to come forward to complain about illegal intimidation. They might set up hotlines for reporting of intimidation.
The Resolution makes clear that the concern about intimidation of defendants and defense witnesses is the same as the concern about victims and prosecution witnesses. The integrity of criminal proceedings is threatened when any victim’s or witness’s testimony is affected by threats, coercion, bribes or any other illegal means.
While in 1789, intimidation usually required personal contact or delivery of written threats, with the development of the telephone, intimidation from a distance became a new threat. In the current digital age, communication with victims and witnesses is possible in an ever-expanding array of ways. And many victims and witnesses have wittingly or unwittingly exposed a vast array of information about themselves on social media, making it easier for any one seeking to find them and influence them, to attempt to do so.
Prosecutors and law enforcement have consistently reported that the highest rates of witness intimidation exist in cases involving domestic violence, gangs and drug dealing.1 However, witness intimidation can occur in any type of case, from white collar crimes to petty offenses. Domestic and intimate partner violence cases arise from the complex web of family and intimate relationships.
Witness intimidation comes most often directly from close family and friends who are personally known to all parties. Ensuring the safety and cooperation of these

victims and witnesses present specific types of challenges. In cases of domestic abuse, law enforcement officials have long observed a tragic pattern: a battered woman will report abuse by her partner to authorities, only to later refuse to cooperate in the prosecution of the abuser. The most common reasons given for withdrawing cooperation include “safety, a desire to save the relationship and economic pressures.”2 Between 25 and 75 percent of women seeking help in shelters return to their partners shortly after leaving.3 Unfortunately, women who drop charges against their abuser “are four times more likely to suffer future violence than those who do not.”4 Although it is sometimes possible to prosecute domestic violence cases even when a victim decides to withdraw cooperation, it is often difficult. There is little that prosecutors can do when there is insufficient evidence to support a conviction.


Gang and drug trafficking cases present a different dynamic and set of dangers to victims and witnesses.5 Intimidation is a key feature of gang and drug-related violence. Gangs, like other criminal enterprises, exist to accumulate power and profit. The prosecution of any member, particularly for a serious offense, threatens all members. Gang associates can be instructed to carry out orders of intimidation and retaliation against witnesses, including orders of execution. In one example in Baltimore, a convicted murderer ordered the execution of a trial witness as well as the witness’s daughter and the daughter’s boyfriend.6
Victims and witnesses who live near offenders are at a greater risk of intimidation than those who live elsewhere.7 When gang members make a credible threat of violence, including against the witness’s family, friends and loved ones, the threat becomes an effective tool to wield against any potential witness. Additionally, in inter-gang violence, the roles of offender, victim and witness are often interchangeable and revolving; the same individual may, at different times, be a victim, a witness and an offender, and rather than cooperate with law enforcement, he/she may choose to retaliate. In many cases there is little that any government officer can do to persuade witnesses and victims to report intimidation and enable prosecution. The goal is to arrive at new strategies using an array of governmental offices and incentives to encourage reporting and cooperation so that illegal intimidation can be prosecuted successfully. Accordingly, th e resolution urges these governments to examine practices, procedures and training to determine whether they are doing all that is necessary and desirable to protect against victim and witness intimidation and to revise practices, procedures and training as needed to assure that the protections are adequate.
Illegal Intimidation and the New Challenges of Social Media
In 1895, the United States Supreme Court articulated the rights and obligations of a crime witness. The Court wrote that “it is the duty and the right … of every citizen, to assist in prosecuting, and in securing the punishment of any breach of the peace of the U.S.” The court recognized that it is the duty of government to see that a witness may pursue this right and duty freely, and “to protect him from violence while so doing, or on account of so doing.”8 Thus, it is well established that a crime witness has both a right and a duty to participate in the criminal justice system and should feel free to come forward and to present evidence of criminal behavior without fear of harm or retribution. It has been and remains the duty of government to protect witnesses, including victims from intimidation that generates the kind of fear that discourages participation in the criminal process or distorts the truth-finding goal of that process.
Social media has become a fundamental part of modern life, and it has increased the difficulty of dealing with the problem of victim and witness intimidation. The most commonly used social media websites – Facebook, YouTube, Instagram, Twitter, Snapchat, and dozens of other multi-media social networking sites -- have become a primary method for information-sharing and self-expression. Unfortunately, social media also has a dark side, having become a simple and effective way to intimidate witnesses.9
Social media has been used by defendants, their families, friends and associates to attack potential witnesses in every imaginable way: publishing “tweets” aimed at a named witness; lining up a series of cartoon ‘emoji[s]’ (i.e. a rat, a gunshot, and a gun) to deliver a readily understood threat; and posting witnesses’ names and personal information, some of which are accompanied by images of secret grand jury testimony and police reports, and denouncing them as “snitches” deserving of general disdain and retribution.10
Also, due to the public nature of social media, the threatening postings contribute significantly to the chilling effect among other potential witnesses who can fully expect similar treatment if exposed.11
Social media makes it easy to intimidate a witness. Individuals who might not participate in physical attacks or deliver personal threats can now intimidate a witness from the comfort of their own homes. Cellular networks provide Internet connectivity virtually everywhere, enabling users to easily post threatening content instantly. User accounts can be established under any name, real or fictitious, and within minutes, posts are added and others can join in on the abuse with the click of a button. Cell phones and smartphones that can convey threats or take pictures have become so problematic inside courtrooms that a number of courts have adopted new, more restrictive cell and wireless policies. The problem extends to prisons, where smuggled cell phones and smart phones make it easy for inmates to harass their victims or accusers using e-mail, text and social networks.12
Technology and social media have effectively nurtured and spread the anti-snitch culture. The number of websites promoting the anti-snitch culture and the ferocity of its message is a good indicator of just how dangerous this phenomenon has become. Anti-snitch music videos and videos exposing snitches have proliferated on YouTube, amassing hundreds of thousands of views.13 YouTube videos of so-called snitches being jumped and beaten are easily accessible. Facebook groups with names like “Snitches get stitches,” “The snitch list,” and “Snitches R Us” are made with the dual purpose of tampering with specific witness testimony and denouncing snitching in general.
Blogs such as “SnitchWire,” databases and other websites are gathering spaces for users to post anonymous, threatening messages to expose anyone the users consider “snitches.”14
As social media grows and the loss of privacy becomes more apparent, all participants in the criminal justice system, including judges, attorneys, court personnel and jurors as well as victims and witnesses, have become more concerned for their safety. Identifying the source of illegally disseminated court documents and police reports alone raises a number of difficult issues, including: access to, and security of, court records and documents; the responsibility of attorneys and others when discovery documents are posted on social media or copied and used to intimidate witnesses; the responsibility of social media companies when their venues are used to commit a crime; and many more.
Prosecutors, law enforcement officials and defense counsel have good reason to be concerned about witness intimidation. Where successful, witness intimidation results in the frustration of a party’s search for the truth. Intimidation can lead to a variety of outcomes. Persons known to have been present during a crime may refuse to speak with investigators, claim to have seen nothing or deny having been present at a crime scene.15 When forced to testify, they may “forget” everything about the crime, claim a Fifth Amendment privilege or actually testify falsely. They may simply disappear prior to trial, or never come forward at all. In the most extreme cases, witnesses and at times, their families, are executed — usually publicly and violently.16 In all instances, justice is not served and the integrity of the judicial process is undermined.
As it becomes easier for those seeking to intimidate witnesses to find them and communicate with them, the burden increases on governments to develop new ways to encourage victims and witnesses to cooperate with law enforcement and prosecutors.
Improper Intimidation and Tampering
Experience has shown that there are various kinds of intimidation. Threats of harm or retaliation are perhaps the most obvious and egregious. They are also unlawful and prohibited in every jurisdiction, as they should be. But there are instances in which lawyers (both prosecutors and defense counsel) and their investigators may act in ways that intentionally or unintentionally may improperly influence victim and witness testimony. Law enforcement officers and prosecutors have authority entrusted to them that defense counsel and defendants do not share. Prosecutors have the grand jury and subpoena power. They have the right to confer immunity upon witnesses, the right to offer plea deals in exchange for cooperation, and the right to increase the exposure of uncooperative witnesses. All members of the bar share an interest is seeing that such authority is exercised justly.
The vast majority of lawyers and investigators who work within the criminal justice system do so with respect for victims and witnesses. Unfortunately,

there are a few who do not. The desire to make or defeat cases and the desire to win cases that are tried may cause some attorneys and their investigators to use tactics that threaten the integrity of witness testimony. Some conduct is unlawful, and some is egregious. For example, in 2013, a high-profile defense attorney and former federal



prosecutor, Paul Bergrin, was convicted in federal court in New Jersey of conspiring to kill a key government witness in his client’s drug-dealing case.17
Law enforcement can also be involved in witness tampering. In Santa Ana, California, a trial court judge reprimanded prosecutors for “contemptible conduct toward witnesses” and dismissed the securities violation case after the prosecutors called a witness’s employer and “spread innuendo” that resulted in the witness losing her job.18 Afterward, the prosecutors “pressured her into pleading guilty” to an offense that occurred seven years earlier, and conditioned the guilty plea on her “changing her story to support the prosecution” in the securities violation case.87 In his reprimand, the judge said he had “absolutely no confidence that any portion of [the witness’s] testimony was based upon her own independent recollection of events as opposed to what the government thought her recollection should be on these events.”19
Such examples are surely the exception rather than the rule. But, there are more subtle ways in which lawyers and investigators can seek to affect what victims and witnesses say. Lawyers are well advised to pay careful attention to the ABA Standards on the Prosecution and Defense Function as well as the rules of professional conduct that apply in their jurisdictions.
The undeniable fact is that lawyers, through their professional skill and status, and investigators, through their skill and persuasiveness, may be able to affect victim and witness testimony in worrisome ways, even without realizing that they are doing so. This explains in large measure why lawyers cannot contact represented opposing parties without permission of their counsel. One of the ways that prosecutors and defense counsel and their investigators can protect against intimidating victims and witnesses is to adopt a policy of telling them all the following: “You may be speaking to lawyers and investigators as a case progresses. If anyone, including me, does or says anything that causes you to think that that person is trying to get you to change testimony or to say something that is not entirely truthful, tell that person, including me, that you believe you are being pressured improperly. If it is a prosecutor or law enforcement officer you feel has improperly pressured you, do not hesitate to report that to defense counsel or to the prosecutor’s or law enforcement officer’s superiors. And if it is defense counsel or a representative of the defense who has done so, do not hesitate to report that to the prosecutor.”
Conclusion
The Resolution highlights the threat to the integrity of the criminal justice system as a result of victim and witness intimidation. Meaningful participation in the criminal justice system cannot exist when victims and witnesses are too fearful to come forward or are afraid to tell the truth about what they know. When victims and witnesses are too fearful to participate in the judicial process, the system of justice no longer retains credibility within society and the rule of law as a great arbiter, withers and dies. The Internet has created an explosion of new methods by which a victim or witness can be intimidated with ease, thus making witness intimidation a graver problem than ever before. The prevention of witness intimidation requires renewed, dedicated focus and should be a high priority for all members of the criminal justice system. Legislatures must assure that laws are updated and adequate to deal with new challenges, prosecutors and defense counsel must be alert to the new dangers associated with social media. And all participants in the criminal justice system must be aware of the various ways in which victims and witnesses can feel that they are being improperly pressured. The most egregious forms of intimidation must be investigated and prosecuted, but the more subtle forms must not be ignored.

Respectfully submitted,


Jim Felman and Cynthia Orr, Chairs

Criminal Justice Section

February 2015
GENERAL INFORMATION FORM
Submitting Entity: Criminal Justice Section

Submitted By: Jim Felman and Cynthia Orr, Chairs




  1. Summary of Resolution(s).

The resolution addresses the corrupting influence that unlawful and improper intimidation can have on the testimony of witnesses, including victims, in criminal trials and the reality that intimidation undermines the rule of law and the credibility of the judicial process. The possibility that victims and witnesses will be targeted by individuals who seek to influence their testimony is not new. It has been present since the founding of the Nation. In 1789, intimidation usually required personal contact or delivery of written threats. With the development of the telephone, intimidation from a distance became a new threat. In the current digital age, communication with victims and witnesses is possible in an ever expanding array of ways. And many victims and witnesses have wittingly or unwittingly exposed a vast array of information about themselves on social media, making it easier for any one seeking to find them and influence them, to attempt to do so.



  1. Approval by Submitting Entity. This resolution was approved by the Criminal Justice Section Council at its Fall Meeting on October 25, 2014.



  1. Has this or a similar resolution been submitted to the House or Board previously? No similar resolution has been previously submitted.



  1. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? Approval of this resolution would expand the topics covered in resolution 107B from the Annual Meeting 2012 by covering social media and other topics.



  1. If this is a late report, what urgency exists which requires action at this meeting of the House? Not applicable.



  1. Status of Legislation. (If applicable) Not applicable.



  1. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. The policy will be distributed to various criminal justice stakeholders as a tool to offer guidance on the role of the prosecutor and defense counsel. The policy will also be featured on the Criminal Justice Section website and in Section publications.



  1. Cost to the Association. (Both direct and indirect costs) No cost to the Association is anticipated.



  1. Disclosure of Interest. (If applicable) None



  1. Referrals.

At the same time this policy resolution is submitted to the ABA Policy Office for inclusion in the 2015 Midyear Agenda Book for the House of Delegates, it is being circulated to the chairs and staff directors of the following ABA entities:
Standing Committees

American Judicial System Standing Committee

Ethics and Professional Responsibility

Federal Judiciary

Legal Aid and Indigent Defendants

Professionalism




Special Committees and Commissions

Children and the Law

Coalition on Racial and Ethnic Justice

Commission on Domestic and Sexual Violence

Commission on Youth at Risk

Death Penalty Representation Project

Hispanic Legal Rights and Responsibilities

Sexual Orientation and Gender Identity



Sections, Divisions

Government and Public Sector Lawyers Division

Individual Rights and Responsibilities

Family Law

Judicial Division

Litigation

State and Local Government Law

Young Lawyers Division





  1. Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and e-mail address)

Kevin Scruggs

Director, Criminal Justice Standards Project

American Bar Association

1050 Connecticut Ave. NW, Suite 400

Washington, DC 20036

Phone: 202-662-1503

Fax: 202-662-1501

Email: kevin.scruggs@americanbar.org
12. Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and e-mail address.)
Stephen A. Saltzburg, Section Delegate

George Washington University Law School

2000 H Street, NW

Washington, DC 20052-0026

Phone: (202) 994-7089; (202) 489-7464

Email: ssaltz@law.gwu.edu


Neal R. Sonnett, Section Delegate

2 S. Biscayne Boulevard, Suite 2600

Miami, FL 33131-1819

Phone: (305) 358-2000

Email: nrslaw@sonnett.com

EXECUTIVE SUMMARY
1. Summary of the Resolution

The resolution addresses the corrupting influence that unlawful and improper intimidation can have on the testimony of witnesses, including victims, in criminal trials and the reality that intimidation undermines the rule of law and the credibility of the judicial process. The possibility that victims and witnesses will be targeted by individuals who seek to influence their testimony is not new. It has been present since the founding of the Nation. In 1789, intimidation usually required personal contact or delivery of written threats. With the development of the telephone, intimidation from a distance became a new threat. In the current digital age, communication with victims and witnesses is possible in an ever expanding array of ways. And many victims and witnesses have wittingly or unwittingly exposed a vast array of information about themselves on social media, making it easier for any one seeking to find them and influence them, to attempt to do so.


2. Summary of the Issue that the Resolution Addresses

Prosecutors and law enforcement have consistently reported that the highest rates of witness intimidation exist in cases involving domestic violence, gangs and drug dealing. However, witness intimidation can occur in any type of case, from white collar crimes to petty offenses. Domestic and intimate partner violence cases arise from the complex web of family and intimate relationships.

3. Please Explain How the Proposed Policy Position will address the issue

The Resolution highlights the threat to the integrity of the criminal justice system as a result of victim and witness intimidation. Meaningful participation in the criminal justice system cannot exist when victims and witnesses are too fearful to come forward or are afraid to tell the truth about what they know. When victims and witnesses are too fearful to participate in the judicial process, the system of justice no longer retains credibility within society and the rule of law as a great arbiter, withers and dies. The Internet has created an explosion of new methods by which a victim or witness can be intimidated with ease, thus making witness intimidation a graver problem than ever before. The prevention of witness intimidation requires renewed, dedicated focus and should be a high priority for all members of the criminal justice system. Legislatures must assure that laws are updated and adequate to deal with new challenges, prosecutors and defense counsel must be alert to the new dangers associated with social media. And all participants in the criminal justice system must be aware of the various ways in which victims and witnesses can feel that they are being improperly pressured. The most egregious forms of intimidation must be investigated and prosecuted, but the more subtle forms must not be ignored.


4. Summary of Minority Views

None are known.




1 Kelly Dedel, Witness Intimidation, Problem Specific Guides Series No. 42, Center for Problem-Oriented Policing, Office of Community Oriented Policing Services, U.S. Department of Justice (Jul. 2006), at 7.

2 Paula Reed Ward, Why do some victims of domestic violence refuse to testify? , Pittsburgh Post-Gazette, (June 23, 2013) http://www.post-gazette.com/local/region/2013/06/23/Why-do-some-victims-of-domestic-violence-refuse-to-testify/stories/201306230145

3 Anna Aizer and Pedro Dal Bo, Love, hate and murder: Commitment devices in violent relationships, 93 Journal of Public Economics 412, 414 (2008).

4 Id. at 414.

5 John Anderson, Gang-Related Witness Intimidation , National Gang Center Bulletin , U.S. Department of Justice Office of Justice Programs, Bureau of Justice Assistance and Office of Juvenile Justice Delinquency Prevention (Feb. 2007), at 1.

6 MaryAnn Spoto, Killers Ordered Execution of Witness, Ocean Prosecutor Charges , NJ.com (Nov. 19, 2008), http://www.nj.com/news/index.ssf/2008/11/killers_ordered_execution_of_w.html (stating that two gang members convicted of murder ordered the execution of a trial witness as well as the witness’s daughter and the daughter’s boyfriend). APPVideo, Witness Tampering Murder Sentence (12/1/09), YouTube (Dec. 1, 2009),

https://www.youtube.com/watch?v=rY1XIBaXRhE (stating that the gang members were convicted of witness tampering).



7 . Robin Elliott, Vulnerable and Intimidated Witnesses: A Review of the Literature, Speaking Up for Justice (1998), at 118.

8 In re Quarles, 158 U.S. 532, 536.

9 See generally Kevin Davis, Witness Harassment has Gone Digital, and the Justice System is Playing Catch-Up, ABA Journal (Aug. 1, 2013).

10 . See, e.g., Kim Ring, Holden teen awaits bail ruling in witness intimidation case, Worcester Telegram & Gazette (Dec. 7, 2013), http://www.telegram.com/article/20131207/NEWS/312079888 Rebecca Hiscott, Yes Emoji Death Threats Are Admissible , Mashable (Jan. 16, 2014), http://mashable.com/2014/01/16/emoji-death-threat/; Esteban Parra, Website that outed Wilmington ‘snitches’ removed , The News Journal (Jan. 17, 2014),

http://www.delawareonline.com/story/news/crime/2014/01/17/website-that-outed-wilmington-snitches-removed-/4609399/; and James Staas, Man convicted of witness intimidation after grand jury testimony is posted on Facebook, Buffalo News (Oct. 30, 2013), http://www.buffalonews.com/city-region/erie-county-court/man-convicted-of-witness-intimidation-after-grand-jury-testimony-is-posted-on-facebook-20131030



11 Antisnitch problems worsen with Facebook, Eerie Times (Sept. 25, 2013),

http://www.timesleader.com/news/ouropinion/848368/OTHER-OPINION:-WITNESS-INTIMIDATION-Antisnitch-problems-worsen-with-acebook?template=art_smartphone.




12 AP, Inmates use Facebook to harass their victims, intimidate witnesses from behind bars, New York Daily News (Nov. 21, 2011), http://www.nydailynews.com/news/national/inmates-facebook-harass-victims-intimidate-witnesses-behind-bars-article-1.980641

13 . See, e.g., TheKeepitgutta, Keep it gutta presents. Daniel Schorn, Stop Snitchin’: Rapper Cam’ron: Snitching Hurts His Business, “Code of Ethics”, CBS News (Apr. 19, 2007), http://www.cbsnews.com/news/stop-snitchin/.

14 See, e.g., Mission Statement, SnitchWire, http://snitchwire.blogspot.com/ (stating the blog’s Mission Statement: “SnitchWire exists solely for the purpose of investigating and objectively reporting on the existence and actions of known informants, infiltrators, rats, snitches, and provocateurs. This blog is to be used as a tool for people wishing not to associate with such unsavory, treacherous scum. Individuals pursuing a ‘snitches get stitches’ policy do so on their own accord and are in no way affiliated with this publication”).


15 See, e.g., David Kocieniewski, A Little Girl Shot, and a Crowd That Didn’t See, New York Times (Jul. 9, 2007), http://www.nytimes.com/2007/07/09/nyregion/09taj.html?pagewanted=all.

16 Press Release, U.S. Attorney’s Office, Eastern District of Pennsylvania, Drug Kingpin Kaboni Savage and Sister Kidada Convicted of Arson Murders, Federal Bureau of Investigations (May 13, 2013) (explaining they the defendant was convicted of witness intimidation and murder by ordering the firebombing of the family home of a key eyewitness in his multiple murder trial).

17 Kate Zernike, New Jersey Lawyer Guilty of Murder, New York Times (Mar. 18, 2013),

http://www.nytimes.com/2013/03/19/nyregion/paul-w-bergrin-new-jersey-lawyer-convicted-of-murder.html?pagewanted=all



18 Tim Lynch, Judge Dresses Down Federal Prosecutors, Cato Institute (Dec. 18, 2009), http://www.cato.org/blog/judge-dresses-down-federal-prosecutors.

19 Id.


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