NCJ Number
59262
Journal
Criminal Law Bulletin Volume: 15 Issue: 4 Dated: (JULY/AUGUST 1979) Pages: 301-321
Date Published
1979
Length
21 pages
Annotation
THE PRACTICAL AND ETHICAL PROBLEMS CONFRONTING PROSECUTING ATTORNEYS WHO MUST DEAL WITH AN UNCOOPERATIVE VICTIM-WITNESS ARE EXAMINED IN THIS ARTICLE.
Abstract
THE TRADITIONAL RATIONALE FOR DEFERRING TO THE WISHES OF THE UNCOOPERATIVE VICTIM BASED ON THE FORGIVENESS DOCTRINE, IS OFTEN APPLIED IN CASES IN WHICH THERE IS NO GENUINE FORGIVENESS. EVEN IN THOSE CASES WHERE THE FORGIVENESS IS REAL, THE DOCTRINE SHOULD BE NARROWLY CONFINED TO SITUATIONS INVOLVING CONFLICTS BETWEEN SPOUSES, RELATIVES, NEIGHBORS, AND CLOSE FRIENDS. THE DOCTRINE SHOULD NOT BE APPLIED UNLESS THE FORGIVENESS CAN BE SAID TO BE CONSISTENT WITH THE ACTIONS OF THE REASONABLY FORGIVING VICTIM. ALTHOUGH TAINTED VICTIM RATIONALE MAY BE APPLICABLE IN SITUATIONS WHERE THE VICTIM'S GUILT SEEMS TO PRECLUDE A JURY CONVICTION OR WHERE THERE IS A STRONG MORAL OBLIGATION TO PRESERVE THE CONFIDENCES OF THE VIICTIM, COURTROOM PHOBIA, VICTIM INCONVENIENCE, AND FEAR OF RETALIATION SHOULD NOT BE ALLOWED TO JUSTIFY NONPROSECUTION. A PROSECUTOR WHO IS SENSITIVE TO THE PERSONAL INCONVENIENCES OF HIS WITNESSES AND WHO IS LIKELY TO MEET WITH CONSIDERABLE HOSTILITY AND RESENTMENT FROM VICTIMS CAN MITIGATE SUCH HOSTILITY WITH TACT AND THE USE OF RESOURCES AVAILABLE SUCH AS COMMUNITY TRANSPORTATION SERVICES. WHERE THE VICTIM REFUSES TO APPEAR IN COURT, VEILED THREATS OF CONTEMPT-OF-COURT CITATIONS ARE PROPER, IF THE PROSECUTOR HONESTLY INTENDS TO CARRY OUT HIS THREAT. HOWEVER, IF THE VICTIM FAILS TO APPEAR IN COURT ON THE DAY OF TRIAL, THE PROSECUTOR SHOULD GENERALLY NOT REQUEST A MATERIAL WITNESS ARREST WARRANT. THIS FINAL STEP SHOULD ONLY BE TAKEN WHEN THE CRIME INVOLVED IS EXTREMELY SERIOUS AND THE OPPORTUNITY FOR EDUCATING THE PUBLIC TO ITS CIVIC RESPONSIBILITY IS APPARENT. (AUTHOR ABSTRACT MODIFIED--MHP)