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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."
"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."
"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?