Monday, December 3, 2012

To Arrest the Victim?

The situation usually follows this pattern:

The victim is shot by the defendant, who know each other from the streets.  The victim is taken to the hospital for treatment related to the injuries.  The hospital automatically notifies the police whenever a gun shot wound victim arrives.  The victim is angry and identifies their attacker to the police.  The police arrest the suspect.

Then, it's time for court.  The time for that pesky Sixth Amendment with all it entails about confronting one's accusers.  The victim thinks they did enough by giving a statement to the police.  Why can't the DA's office just do it without them?  Maybe the victim tells you that they don't want to proceed with the case?  Maybe they say they'll just handle it on the street?

It's a common scenario that an ADA sees in increasing frequency as they advance to the most serious cases in their career.  The more dangerous the defendant, the less likely witnesses will willingly come forward to testify against him.  The New York Criminal Procedure Law addresses these situations through the use of a subpoena, criminal contempt statutes, and material witness orders.  We never want to arrest our witnesses.  It does not help our relationship with them, but it its a sad reality of the world we live in every day.  The last thing we want to do is victimize a person twice.

Why Not Just Drop the Case?

Before we get into the how, we must start with why.  Why do prosecutors and police force cases to move through the system when the victim or witnesses are uncooperative?

We don't do it in every case.  There are certain criteria the case should meet before we go through the time, trouble, and expense of arresting a witness.  First, it depends on the type of case.  It will only happen in felony cases.  Even then, the case must be serious before we decide to exercise our ability to arrest uncooperative people.  For example, it's not usually done in a stolen car case.  Think armed robberies, rapes, assaults, and murders.  Second, it depends on the proof of the case.  In a case with slim proof and uncooperative witnesses, we are less likely to move for a material witness order and warrant.

But why would we even do it?  Prosecutors must enforce the laws.  We represent the state we work in, not the victims.  Therefore, we don't answer to the victim's wishes, whether they want the death penalty for the defendant or to allow him to go free.  When dangerous people commit crimes and are likely to do it again, we must act to prevent it.  Plus, when people commit crimes and are able to intimidate witnesses into not appearing to testify against them, there is a degree of boldness and escalation that exists.  The defendants that hold so much sway that they can threaten and intimidate their way to force victims not to appear are usually the ones who make life terrible in neighborhoods.  

The Subpoena

It all starts with the subpoena.  C.P.L. Section 610 allows prosecutors to issue subpoenas directing witnesses to attend grand jury or court proceedings where testimony is required.  Anyone over 18 can serve the subpoena, but it is usually done by police officers or detectives.

Criminal Contempt

If the witness willingly fails to appear after the subpoena is delivered?  They are guilty of Criminal Contempt in the Second Degree, a class A misdemeanor (Penal Law 215.50(3)).  It is punishable by up to a year in jail.  If the witness shows, but refuses to testify?  It's still criminal contempt.

Material Witness Order

Now there are two options.  The first is to direct the police to arrest the witness and charge them with criminal contempt.  The second is to apply to the court for a material witness order and warrant.  A material witness is someone who the People or defense desire to call as a witness at a pending criminal action and there is reasonable cause to believe that the witness has material information about the case and will not appear when subpoenaed.  C.P.L. Section 620 provides the procedure required to get to this point.

It's easy to show that the witness will not appear when subpoenaed if we already tried and they didn't show.  But personal service of a subpoena is not required to get an order from the court.  We just have to show that the person will not show if subpoenaed.  Have all the phone numbers been disconnected?  All of the addresses are dead ends?  

Once the order is signed, a warrant issues for the person's arrest.  Once arrested, the police must bring the person to the court who will declare the person a material witness and either fix bail or release the person.  Bail usually depends on whether a person cooperates or not.  If there's bail, the person is entitled to a hefty $3 a day while in jail.  I find that that most people usually run far away from me, the courthouse, and the DA's office once they are going to be released.  They usually forgo the $3.

Most of the time, people appear when subpoenaed.  They are never happy to testify, but usually do so.  When I do apply for a material witness order, I ask the officers or detectives to treat the person like a witness, not a suspect.  Try not to handcuff them unless necessary and bring them right to my office, not central booking.  That way I can walk the witness right down to court after getting them a lawyer and speak to them through their attorney.  The last thing any attorney wants is an antagonistic witness, even if you had to move heaven and earth to get them there.  This is the social work portion of the job.

So far, I've never had to charge anyone with criminal contempt for refusing to testify.  But, in my line of work, that could all change tomorrow.

Check out the flip side view from defense attorney Jamison Koehler.


  1. Say the complaining witness in a domestic assault case calls you. She tells you that it was all a big mistake -- her boyfriend never really assaulted her. She was just mad at him that night and wanted to punish him. The evidence is pretty strong that her boyfriend did in fact assault her. Neighbors, for example, heard them arguing and heard signs of some type of struggle. You also strongly suspect that she is just saying this to get you to dismiss the case.

    I understand from the above blog post that you would probably not lock her up for failing to appear. I have two questions:

    (1) Would you turn information on her recantation over to the defense under Brady?

    (2) Assuming she made a statement to police on the night in question and then failed to appear at trial, would you try to get that statement in under an excited utterance or other hearsay exception?

    1. (1) It's Brady and I'd turn it over. In the offices I've been in, the policy is if you have to think about whether it's Brady, turn it over. A witness recantation professing innocence falls under Brady in what I've seen.

      (2) Depends on the case and how strong the corroborating evidence is. Do the police see fresh injuries on her when they are called? Is it clear it would be an excited utterance/present sense impression? If there is strong corroborative proof, we would probably go forward.

  2. Interesting stuff, and I don't know how you keep track of it all!

  3. That's fascinating. I didn't know about the material witness order. I am in agreement though with prosecutors having these enforcement type strategies at their disposal especially in the case of really serious, violent crimes.

  4. What if the victim is scared to testify do you guys ever think what can happen to them after if this person who's done something to the victim has family friends anything ... How long are they able to hold the victim for

    1. We always think about what can happen to the victim or his family and have services in place to help, if the victim wants the help. Unfortunately, the level of fear in the victim is not the determining factor as no one would ever be held accountable then.