Tagged: witnesses

Victim’s Role in Criminal Proceedings: Past, Present and Future

BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm based in New York City.

At the dawn of the U.S. legal system, victims were central – indeed, the essential element – in the prosecution of crimes. Criminal investigations, criminal proceedings and restitution efforts were private, that is, they were initiated and pursued by those who had been harmed. Crime had not yet been framed as an offence against the state, or society, but was viewed as a failure of individuals and a violation of interpersonal relationships. Before the Revolution, an active role in the criminal justice process was not a privilege granted to victims; rather, it was their responsibility. This regime, drawn almost entirely from English common law, considered only one crime as an offence against the state: treason.

This is  a system of justice we would hardly recognize today, one in which the domains of criminal and civil law were nearly indistinguishable. It was not fated to last. With the American Revolution came fundamental changes in the understanding of crime, leading to the birth of what today we would call the modern U.S. criminal justice system.

Having established their sovereignty, the colonies quickly recognized that new social groups, with their own interests and vulnerabilities, had been born. Soon, public prosecutors were appointed, with burgeoning bureaucracies to follow. Crimes themselves came to be seen no longer as offenses against the individual, but as a form of harm against society. By the 19th century, private criminal prosecutions had been “entirely eliminated,” according to Mary Boland, currently one of the foremost legal advocates for victim’s rights and co-chair of the American Bar Association’s Victim’s Committee. As time passed, the victim  fell out of the criminal process’s view, until victims were little more than vehicles for the presentation of evidence assembled at the state’s pleasure.

It was not until the 1960s that the victim, as an individual with rights and interests, would again come into focus. The social revolutions of the 1960s led to a feeling of social instability that itself led to concerns with the issue of crime, and victim’s rights groups emerged. Because of a shared experience of oppression and vulnerability, champions of the Civil Rights Movement and the Feminist Movement coalesced around an understanding of criminal justice that emphasized victims’ rights. Crucially, calls for reform from progressive quarters were joined by similar ones from the conservative law and order movement, which urged renewed attention on the failings of the criminal justice system to combat rising crime rates.

A full-throated crime victims’ rights movement emerged in the 1970s, galvanized by the 1973 U.S. Supreme Court decision in Linda R.S. v Richard D., in which the Court affirmed, in dicta, that victims cannot compel criminal prosecution because “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.”

Meanwhile, grassroots organizing led to the creation of domestic violence and rape crisis centers across the Nation, organizations that would come to form the backbone of a vocal national coalition. Reactionary impulses were also at work. In 1975, Rule 615 of the Federal Rules of Evidence was enacted, requiring courts to exclude witnesses, including victims, from the courtroom on the request of either prosecution or defense. Understandably, this has been widely cited as the low-water-mark in the battle to reintegrate victims into criminal proceedings. At the same time, the justice system had begun to realize that treating victims as valuable participants in proceedings was not contrary to, but supportive of, its own aims.

In 1974, Donald E. Santarelli, then-Director of the Federal Law Enforcement Assistance Administration, became acquainted with the work of Frank Cannavale. In his book Witness Cooperation, Cannavale argued forcefully that the loss of cooperative witnesses, victims who had become fed up with a justice system seemingly uninterested in their own needs, was the primary cause of prosecution failure. Santarelli was instrumental in funding the first victim and witness assistance pilot projects, including one in Denver’s District Attorney’s Office, which often went far beyond notifying victims of important court dates. In collaboration with grassroots organizers, a quickly-growing roster of victims’ assistance programs began offering crisis intervention services and on-call help lines. Likewise, prosecutors started to seek out and consider victims’ opinions on bail determinations, plea bargains, sentencing and parole hearings.

After his inauguration in 1981, President Ronald Reagan soon established the President’s Task Force on Victims of Crime. In its December 1982 final report, the Task Force acknowledged what many members of the public already knew: “[T]he innocent victims of crime have been overlooked, their pleas for justice have gone unheeded, and their wounds – personal, emotional, financial – have gone unattended.” As a starting point, the Task Force recommended a Constitutional Amendment that would enshrine the rights of victims.

While that has not yet happened, the crime victims’ rights movement has spurred enormous legislative successes. To date, 33 states have ratified constitutional amendments enlarging the rights of crime victims, according to the National Crime Victim Law Institute at Lewis & Clark Law School. The remaining states have all passed legislation on the subject. In 1982, Congress enacted the Victim and Witness Protection Act, granting federal courts the authority to award restitution to victims as part of a defendant’s sentence. The Victims of Crime Act of 1984 established the Office for Victims of Crime and the Crime Victim’s Fund, which compensates victims for a variety of crime-related losses.

While certainly welcomed, these initial legislative measures were often criticized for focusing disproportionately on financial remuneration at the expense of victims’ other needs. The Crime Victims’ Rights Act of 2004 went further, effectively granting victims a participatory role in criminal proceedings. The Act enumerated eight rights to which victims are entitled in federal criminal cases:

  1. The right to be reasonably protected from the accused.
  2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.,
  3. The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
  4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
  5. The reasonable right to confer with the attorney for the Government in the case.
  6. The right to full and timely restitution as provided in law.
  7. The right to proceedings free from unreasonable delay.
  8. The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Unfortunately, in the view of  many advocates, the promise of inclusion heralded by the Crime Victims’ Rights Act has remained illusory. These rights are rarely enforced, says Mary Boland. The National Crime Victim Law Institute has called them “paper promises.”

Recent years have seen a new, double movement, in which the individualization of victims and their increasing impact on criminal justice proceedings is matched by efforts to individualize offenders and promote rehabilitative strategies over punitive measures. This is different from the movement of the 1970s that posited victims’ rights in opposition to defendants’ rights. Within this emerging regime, the lives of victims and offenders are no longer isolated from one another and the rights of one do not depend on limiting the rights of the other. In many ways, both parties to crime share the same path. It is not a paradox that, under many alternative theories of justice, the state should once again fall into the background, much as it did before the Revolution. The movement for restorative justice, a concept that has come to prominence since the late 1970s, focuses on minimizing the state’s role in proceedings, focusing instead on victim-offender mediation.

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Student Perspective: The Etan Patz Case – Confession, Lack of Physical Evidence and Reasonable Doubt

POST WRITTEN BY: Alexander Zugaro (’15), Pace Law School

The story of the 6-year-old boy, Etan Patz, who had gone missing in SOHO Manhattan in 1979, is one that stretches over several decades. Now, after a ruling on November 24, 2014 by Judge Maxwell Wiley and almost a three month long trial, the story is reaching a conclusion. In 2012, after police re-opened the investigation, Pedro Hernandez confessed to law enforcement that he was responsible for the disappearance and murder of Etan Patz. He told law enforcement that he strangled Etan and disposed of his body. Mr. Hernandez was an 18-year-old man working in a neighborhood convenience store at the time of Patz’s disappearance.

However, this past fall a hearing was held regarding the admissibility of Mr. Hernandez’s confession. Hernandez’s defense attorney, Harvey Fishbein, argued that Hernandez was schizophrenic and bipolar at the time he made his confession. As such, Mr. Hernandez did not understand he could reassert his right against self-incrimination even after he waived his Miranda warnings. Yet, Judge Maxwell Wiley ruled on November 24, 2014 that the confession was admissible, stating that Hernandez waived his Miranda rights and that such waiver was done knowingly and intelligently.

To date the prosecution has not been able to find any evidence corroborating Hernandez’s confession, except a statement made by Hernandez’s brother who told police that Hernandez had confessed to him two years prior to his arrest and a statement made to members of his prayer group in the summer of 1979, none of whom came forward to testify until after Mr. Hernandez was arrested. The body of Etan Patz was never found, and prosecutors have not presented any physical evidence tying Mr. Hernandez to the boy’s disappearance.

The significance of Judge Wiley’s ruling is that the jury was able to hear Hernandez’s confession and will decide on whether they believe his confession is reliable. Defense attorney Frishbein stated that “Mr. Hernandez is extremely suggestible because of his low I.Q. and other mental handicaps. Anyone who sees these confessions will understand that when the police were finished with him, Mr. Hernandez believed he killed Etan Patz, but that doesn’t mean that he did.” On the other hand, however, the lead prosecutor stated that Mr. Hernandez’s statements contain little-known details about the crime that would be hard for someone to invent. Because Judge Wiley ruled that Hernandez’ confession is admissible, the prosecution was able to present this confession as evidence to the jury, leading to the inevitable back and forth between Mr. Fishbein and the prosecutors about the reliability and weight of the confession.

Generally, if a defendant makes a videotaped confession coupled with voluntary admission to at least one other person, such evidence would be nearly impossible for the defense attorney to overcome. However, since in this case there is no tangible evidence corroborating the confession, will the jury doubt the accuracy of Mr. Hernandez’ confession? Time will soon tell.

Since the beginning of the trial on January 30, 2015, the defense has continued to undermine the reliability of Hernandez’s confession. Not only has the defense argued that the confession was a fantasy invented under police pressure by a man with a weak and malleable mind, plagued by a personality disorder, Mr. Fishbein has presented evidence of an alternative suspect who might have been responsible of Etan Patz’ disappearance. Witnesses place Jose A. Ramos, a man convicted of child molestation in an unrelated case, near Etan Patz’s home around the time of the murder. Ramos was dating Ms. Susan Harrington, who was hired to walk Etan Patz to and from school. The defense witnesses further testified that Ramos met Etan Patz and that he had been in the Patz’s apartment. Although Etan Patz’s mother denied Ramos was ever in their apartment, by presenting this evidence, the defense further undermined Hernandez’s confession.

The confession of Mr. Hernandez has become the focal point of the entire trial. As the attorneys are delivering their closing arguments, many people following the case and trial, I’m sure, have developed their opinions. For me, it was important to realize and understand that an innocent defendant and a defendant being not guilty are two very different things. The defense attorney has to create a reasonable doubt in the jurors’ minds that Hernandez has possibly not committed the alleged crime in order to succeed. Mr. Fishbein’s efforts to cast this doubt by introducing an alternative suspect theory, by undermining the reliability of the original confession, and by pointing to the lack of physical evidence have been clear. However, it is difficult to tell what the outcome of this case will be. As the jury is about to retire to deliberate, the long anticipated verdict will soon be revealed bringing this case to a close after decades of waiting.

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Special Tribunal for Lebanon Confronts a Challenge to Its Legitimacy

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On Thursday, May 29, 2014, the Special Tribunal for Lebanon (STL) held a hearing on charges that it had issued on April 24, 2014, against two Lebanese journalists and two media organizations for contempt and obstruction of justice. The charges alleged that the journalists contravened the Tribunal’s order by publishing the names of witnesses who might appear for the Prosecution in the major criminal case before it. As reported earlier this year, the STL has indicted five members of Hezbollah for responsibility in connection with a February 14, 2005 bomb attack that killed Lebanese Prime Minister Rafiq Hariri and about twenty other victims.

According to the Daily Star of Lebanon, Ibrahim al-Amin, editor-in-chief of Al-Akhbar, one of the journalists charged with contempt, appeared at the May 29 hearing via video-link from a remote room from which he walked out after vehemently denouncing the contempt proceeding as politically biased and illegitimate.

In his prepared statement to the Tribunal, Amin, referring to the fact that the STL was set up by the U.N. Security Council in cooperation with the Lebanese Government, said, “I do not accept the legitimacy of this court which was invented by the Security Council, which has never guaranteed global security.” He added that “[w]e all know that local, regional and international powers which stand behind the creation of the tribunal are the same that instigate enduring wars in my country, against my people, and against its heroic resistance that is standing up to American, European and Israeli terrorism.”

The contempt proceeding has added to the troubling factional political controversies confronted by the STL. The outcome will have significant implications for the effectiveness and credibility of an international criminal tribunal – especially one that seeks to pursue a mandate issued by the Security Council.

Professor Gershman Conducts Eye Witness Identification Exercise in Criminal Procedure Class

POST WRITTEN BY: Annmarie Stepancic (’15), Pace Law School

I was part of a fascinating experiment in my Criminal Procedure Class at Pace Law School, which powerfully brought home the dangers of mistaken identification and wrongful conviction. On Thursday, April 24, 2014, class began in its ordinary fashion – a student was called on to discuss the facts and holding in United States v. Wade, 388 U.S. 218 (1967). About ten minutes into class, we all learned that this was no ordinary criminal procedure class when a man suddenly stormed into the classroom. According to students’ accounts of the event, the man approached the Professor, Professor Bennett Gershman, and shouted, “Hey Gershman, remember me? You fucking failed me last year.” The intruder then pulled out a gun with his right hand (a “black Glock semi-automatic pistol,” according to some students), and stated, possibly two times, “Give me your wallet.” One student stood up, but the man ordered her to sit down. The man ordered everyone in the class to stay seated. The Professor gave up his wallet and the man ran out. The whole event, according to students, lasted anywhere from thirty seconds to a minute and a half.

A Pace Security guard came in moments later. Professor Gershman assured him that everything was OK. Professor Gershman asked the students not to talk to each other and to write down a brief description of what they just observed, including a description of the assailant.

After the students did so, Professor Gershman dimmed the lights, pulled down the screen, and projected a photographic array of males of similar age and facial characteristics to the intruder.   The students were asked to try to identify the intruder from the photos. Prof. Gershman specifically admonished the students that the perpetrator might or might not be in any of the photos.

Here are the results:

  • Photo #1 – 1 student (1%)
  • Photo #2 – 7 students (9%)
  • Photo #3 – 1 student (1%)
  • Photo #4 – 9 students (12%).
  • Photo #5 – 41 students (55%).
  • Photo #6 – 9 students (12%)
  • Six students reported that the assailant’s photo was not present in the array (7%).

The intruder’s photo was photo #5.

After the students made their selections, the “intruder,” was invited in along with the Greenburgh Chief of Police, Chris McEnery, a Pace Law School alum and a wide-ranging mini-symposium on the constitutional, ethical, and policy rules governing eyewitness identifications began. Specifically, the discussion focused on, as Justice Brennan famously observed in the landmark case of United State v. Wade, how

the annals of criminal law are rife with instances of mistaken identification.

A review of the student responses apparently reveals that most of the students got the prominent facts right, but varied on lots of subsidiary details, and that they omitted important facts. Even though the students were shown the photo array approximately five minutes after the event, only 55% correctly identified the perpetrator in the photo array lineup. It is critical to note, of course,  that real eyewitnesses would not be shown a lineup – corporeal or photographic – so quickly after an event, when the event is so fresh in the minds of the observer, as was the case in our class. As social science and scientific research demonstrates, memory retention – particularly the memory of an eyewitness – dissipates over time.

Freedom of Press v. Obstruction of Justice: The Special Tribunal for Lebanon Takes a Controversial Stand

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On April 24, 2014, the Special Tribunal for Lebanon (STL), located in The Hague, charged two Lebanese journalists and two media organizations with contempt and obstruction of justice for allegedly publishing the names of witnesses who might appear for the prosecution in the major criminal case before the STL. The basis for the contempt charges is that the publications at issue may cause the witnesses to fear to testify or undermine the Tribunal’s ability to protect them. The STL has issued a summons to the two journalists to appear before the court on May 13, 2014.

In December 2005, the Government of Lebanon issued a request to the United Nations Security Council for creation of a tribunal to prosecute those responsible for the February 14, 2005 bomb attack that killed Lebanese Prime Minister Rafiq Hariri and 22 others. In response to this request and pursuant to its authority under Chapter VII of the U.N. Charter, the Security Council issued Resolutions 1664 (in 2006) and 1757 (in 2007) to establish a tribunal of an international character to prosecute those responsible for the February 2005 attack. The Security Council, through Article 28 (1) of Resolution 1757, required the judges of the STL to adopt Rules of Procedure and Evidence that would include provision for the protection of witnesses. Rule 60 bis of the STL’s Rules of Procedure and Evidence provides for charges of contempt and obstruction of justice against

any person who … discloses information relating to proceedings in knowing violation of an order of a Judge or Chamber.

Trial against the individuals accused of the bombing commenced in absentia in January of this year pursuant to Article 22 of Security Council Resolution 1757 that authorizes the STL to proceed with trial in absentia when circumstances warrant.

The publications at issue in the contempt proceedings confront the STL with serious factional and political complications in the Middle East. A post by the Guardian asserts that the defendants in the case are all members of Hezbollah but also states that Hezbollah has vehemently denied carrying out the attack. A news report by the Daily Star of Lebanon suggests that the publications were made at least in part by persons or media organizations sympathetic to political goals of the defendants.

The STL’s decision on the contempt issue has drawn prompt and strong criticism within Lebanon, including from officials of media organizations and from some members of Parliament. Among the issues raised by the critics is that the STL’s order is inconsistent with Lebanon’s law on freedom of the press. Note that unlike the international criminal law tribunals for the former Yugoslavia and for Rwanda, the STL is a “hybrid court” in that it applies a combination of Lebanese law and international criminal law and is staffed by Lebanese and international participants.

A commentator Karlijn Van der Voort who operates a blog on the STL supports the STL’s decision. Van der Voort, after reviewing analogous matters that have come before other international criminal tribunals, asserted that “there is consistent jurisprudence that the publishing of names of alleged witnesses is subject to contempt of court proceedings” and that in the STL matter “the publication of names of witnesses is one step too far: the fact that the Tribunal does not tolerate this is understandable.” 

The STL has taken a stand it considers necessary to pursue effective prosecution of the perpetrators of the deadly February 2005 bombing. But in doing so, it has engendered strong opposition on the issue of press freedom. What follows in the contempt issue will have important implications for what measures the STL and other international criminal tribunals may take in an effort to proceed with their mandates.

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