NCJ Number
86644
Journal
Fordham Law Review Volume: 50 Issue: 4 Dated: (1982) Pages: 582-610
Date Published
1982
Length
30 pages
Annotation
The innocent witness in Federal organized crime prosecutions should be permitted to use the duress defense against charges of contempt for refusal to testify, regardless of whether the witness has chosen not to participate in the Witness Protection Program.
Abstract
The innocent witness, defined here as someone who has no involvement in criminal activity, should be distinguished from the witness who has brought the dilemma of testifying upon himself/herself through voluntary association with an organized criminal subculture. The intimidation of an innocent witness in an organized crime prosecution is a real one, since between 1974 and 1978, prosecution witnesses accounted for nearly 10 percent of all murders known to be attributable to organized crime. Intimidated witnesses who refuse to testify often raise the defense of duress as an excuse for their conduct; however, the Supreme Court has indicated in dictum that fear is not a legal excuse from testifying. The Government has attempted to ameliorate this problem by creating the Witness Protection Program, which is designed to protect Government witnesses and their families by relocating them and providing them with new identities. Forcing a person to choose between the relinquishment of constitutional rights attendant to participation in the Witness Protection Program or facing possible incarceration for contempt stripped of the duress defense imposes an unconstitutional burden on the witness' prerogative to retain those fundamental rights the witness does not voluntarily choose to relinquish. Problems posed by permitting the innocent witness to use the duress defense in not testifying could be resolved through the use of in camera hearings that would be recorded with the transcript sealed. A total of 193 footnotes are provided. (Author summary modified)