Monday, December 13, 2010

Non-cooperative victims/witnesses - what's an ADA to do?

[See below for information about this poll --------------------->]

A reader wonders how we deal with non-cooperative victims and witnesses.

Victims first. This depends on the case. The problem with a non-cooperative victim is that one's case can dissolve pretty fast. This is simply because a victim is usually the key witness in the case - if they suddenly change their testimony then their credibility goes away, and reasonable doubt creeps in. It's hard to win a trial with a genuinely uncooperative victim, but then again, as we make plain: we try to do the right thing in each case, and if that means prosecuting a case despite an uncooperative victim, we'll do so.

Witnesses next. Let me tell you a story:

I had a prostitution case a couple of years ago. The defendant had been previously convicted nine or ten times of that crime, which is why it was a felony (normally, up until your fourth, it's a misdemeanor). The defendant was a very convincing transvestite (this is relevant to the story, I promise).

Now, my main witness was his "john," who I shall refer to herein as "John." According to the offense report, which included a statement from John, he'd realized just at the beginning of the encounter (in his work van) that she was in fact a he, but said to go ahead (pun intended) anyway. Then the police knocked on the van door and the gig was up.

Anyway, I needed John to testify. But when I reached him on the telephone, well, this is how the conversation went:

"John, I need you to testify in this jury trial."
"I can't."
"You can, actually. And you must."
"Will other people be there? The public?"
"Some other people. I don't know how many members of the public though."
"I can't."
"Look, I know this is embarrassing for you, but I'll make you my first witness, get you in and out of there [pun intended] as quickly as possible."
"The thing is, I'm married."
"And I have kids. Six of them."
"I see. But I still need you to testify. Be down at the courthouse at nine on Tuesday, okay?"
"What if I refuse?"
"Then I'll send an investigator to your house with a subpoena. To your house, John."
"Tell me again, what time do you want me there?"

Now, usually, I prefer the carrot over the stick. An unhappy witness doesn't get happier by being threatened or bullied, and that's not my style anyway.

Typically, I've found that the more I explain the process, the more cooperative witnesses become. The best tack, for me, is simply to say something like: "All I want you to do is come in and tell the truth, to tell the jury what happened. That way, there's nothing to worry about. You can't be caught in a lie, you can't get beaten up by defense counsel, and you don't have to worry about telling the right story. Telling the truth will make testifying brief and relatively pain free."

And it's true. In a recent trial the victim was terrified of testifying, but I told her to look at me or the jury, to just concentrate on relating what happened. Afterward, she admitted it had all been much easier than she'd feared.

Sometimes, amazingly, witnesses don't take my words as gospel. Can you believe that?


  1. Do you not automatically issue subpoenas for all of your witnesses in a trial? Do you expect most of them to just show up?

  2. Anon @ 6:39: Almost always, yes. But I prefer that to be a formality. And, of course, if I issue a subpoena that by itself doesn't mean the person will attend, it just means I have recourse if they don't. And, in the case of "John," I didn't want to hurt his family. I did subpoena him, but he came by the office to get it.

    1. What is yoir recourse if the,witness ignores the subpoena?

  3. This was one of my suggestions as a topic as I am relatively new to a position as a domestic violence prosecutor, and i would say the majority of my cases involve a difficult task of getting a victim to come to court and testify, whether it be out of fear, or confusion about how much the defendant loves them. It can be very difficult to prove these cases beyond a reasonable doubt when the victim is denying that a crime occurred, and the defense knows this too so all leverage is lost. In the cases where there are no other witnesses and limited physical evidence it is tough to try these cases and at the same time tough to put the victim back in that situation without the protection of the court or probation to protect it happening again or getting much worse. Guess I was just wondering what others might do in that situation. Don't want my name involved with dropping a case where the same defendant and victim show up again this time with a serious injury.

  4. Thank you for the chuckle - the stories and the puns.

    I, of course, see it from the opposite perspective -- girlfriends who call the police because they are mad at their boyfriends and want to get them in trouble, eyewitnesses who are lousy stinking liars, and so forth and so on. (Mostly kidding.)

    My question: How often do you file contempt charges against a witness who ignores a subpoena?

    At one point while I was practicing in Philadelphia, the district attorney's office started to file contempt charges against complaining witnesses in domestic violence cases who simply failed to appear. I guess they got tired of people ignoring the subpoenas and decided to send a message out into the community. This led, of course, to the whole discussion about victimizing the witnesses twice.

  5. Back in 2000, I attended a week long conference where one of the sessions was taught by the District Attorney in Lubbock. I was blown away when he said they prosecute sexual assault cases whether the vicitm is agreeable or not! Where I live, we can't even get SA cases WITH confessions prosecuted!

    So glad to hear you are willing to try with reluctant victims. Keep up the good example.

  6. Edith Ann: thanks! We'll keep plugging away. :)

    Jamison: you know, I have never seen that happen here. Or heard of it. I find, in reality, that people do abide by subpoenas so maybe that's why. The closest we came was having the judge lecture the witness at a prior court hearing about the importance of coming to court when subpoenaed.

  7. My name is KeAsia and my boyfriend is locked up due to me calling the police because he took our kids while paranoid, well now i received a subpoena to go to family court what should i do if i just want him home?

  8. Hello, am looking for any advice on my first question


Comments posted to this blog are NOT the opinion of the Travis County D.A.'s office, under any circumstances. They are only the personal, non-representative opinion of D.A. Confidential if posted under his name.
I welcome all comments, as long as they are expressed with politeness and respect. I will delete all comments that I deem to be personal attacks, or that are posted merely to antagonize or insult.