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Report No. 198

7.7 U.S.A.

7.7.1 In United States Code, Title 18, Crimes and Criminal Procedure, at part I crimes, in chapter 73 (obstruction of justice), there is provision for issuing a temporary restraining order prohibiting harassment of victim or witness in Federal Criminal cases.

As per section 1514(a) when a US District Court, upon application of the attorney for the Government, finds that there are reasonable grounds to believe that harassment of a victim or witness in a Federal criminal case exists, it shall issue a temporary restricting order prohibiting harassment of such victim or witness, as the case may be. This temporary order may be issued without written or oral notice to the adverse party. When the temporary order is issued without notice, the motion for a protective order shall be set down for hearing at the earliest possible time, and after the hearing the District court may issue a protective order.

Apart from this provision, there are other provisions in the United States Code, Title 1.- Crimes and Criminal Procedure, in part I.- Criminal Procedure. Chapter 224 thereof deals with protection of witnesses or potential witnesses for Federal Government or for a State Government in any official proceeding in connection with organised criminal activity or other serious offences.

Section 3521 makes provision for witness relocation and protection. According to this section, the Attorney General may provide for the relocation and other protection for a witness. The Attorney General may also provide for the relocation and other protection of the immediate family of, or a person otherwise closely associated with such witness or the potential witness if the family or person may also be endangered on account of the participation of the witness in the judicial proceeding.

The Attorney General shall take necessary action to protect the person involved from bodily injury and otherwise to assure the health, safety and welfare of that person including the psychological well being and social adjustment of that person. The Attorney General may, by regulation;

(a) provide suitable documents to enable the person to establish a new identity or otherwise protect the person;

(b) provide housing for the person;

(c) provide for the transportation of household furniture and other personal property to a new residence of the person;

(d) provide to the person a payment to meet basic living expense;

(e) assist the person in obtaining employment;

(f) provide other services necessary to assist the person in becoming self sustaining;

(g) disclose or refuse to disclose the identity or location of the person relocated or protected or any other matter concerning the programme;

(h) protect the confidentiality of the identity and location of person subject to registration requirements as convicted offenders under the Federal or State law;

(i) exempt procurement for service, materials and supplies and the renovation and construction of safe sites within existing buildings from other provisions of law, as may be required to maintain the security of the protective witness and integrity of the witness security programme.

Any person who, without the authorisation of the Attorney General, knowingly discloses any information received from the Attorney General, is liable to be punished.

Before providing protection to any person, the Attorney General shall enter into a memorandum of understanding with that person setting out the responsibilities of such person. The MOU shall also set forth the protection which will be provided to that person.

If the Attorney General determines that harm to a person for whom protection may be provided, is imminent or that failure to provide immediate protection would otherwise seriously jeopardise any ongoing investigation, he (Attorney General) may provide temporary protection to such person.

The Attorney General may terminate the protection provided to any person who substantially breaches the memorandum of understanding, or who provides false information concerning the MOU or the circumstances pursuant to which the person was provided protection. However, before terminating such protection, the Attorney General shall send notice to the person involved, of the termination of the protection and the reasons for the termination. The decision of the Attorney General to terminate such protection shall not be subject to judicial review.

According to section 3522, a probation officer may, upon the request of the Attorney General, supervise any person provided protection who is on probation or parole under State law, if the State consents to such supervision.

The failure by any person provided protection, who is supervised as mentioned above, to comply with the MOU, shall be ground for revocation of probation or parole.

Section 3523 obliges the Attorney General to serve civil notice issued by a court on a protected person. The Attorney General shall urge the protected person to comply with a court judgment.

Section 3525 requires the Attorney General to pay compensation to the victim of a crime where such crime causes or threatens death or causes serious bodily injury and where the offence is committed by the protected person during the period of protection.

The Attorney General, as per section 3526 may provide protection to a person on the request of a State Government also but the expenses involved are reimbursable by the requesting State Government.

7.7.2 Victim Witness Protection Programme at Western District, New York (at the US Attorney's Office): In the United States of America, the 'Department of Justice Victim Witness Program' was established. It was a result of the Victim and Witness Protection Act, 1982, the victims of Crime Act, 1984, the Violent Crime Control Act, 1996, the Anti-Terrorism and Effective Death Penalty Act, 1996 and the Victims Rights Clarification Act, 1997.

Also are relevant, the Crime Control Act, 1990, Violent Crime Control and Law Enforcement Act, 1994, Mandatory Victims Restitution Act, 1996. The Acts guarantee federal victims and witnesses, certain rights and they impose significant duties and responsibilities on the US Attorney's Office.

The Victim and Witness Protection Act, 1982, referred to above, contains several provisions to aid victims and witnesses of federal crimes. It is applicable to all victims of serious crime, personal violence, attempted or threatened personal violence or significant property loss. The basic provisions of the Act relate to (1) notification (2) consultation and (3) referral services for victims and witnesses of serious crime.

The UN Attorney's office for the Western District of New York, which covers 17 counties, has several items in the programme. Under the programme a 'victim' is defined as one who suffers direct or threatened physical, emotional or financial harm as a result of the commission of a crime. The definition includes 'spouse, legal guardian, parent, child, sibling or another family member for any victim below 18 years age, incompetent, incapacitated or deceased. Institutional entities can also be termed as 'victims'. Any person who is culpable for the crime being investigated is not a 'victim'.

A 'witness' is defined as someone who has information or evidence concerning a crime, and provides information regarding his knowledge to a law enforcement agency. Where the 'witness' is a minor, the term includes an appropriate family member. The term 'witness' does not include defence witnesses or those individuals involved in the crime as a perpetrator or accomplice.

The 'Victim-Witness Staff' is available to provide supportive services to innocent victims and witnesses of a crime. Victims of crime often experience physical, emotional and financial trauma as a result of their actions of the accused. As a victim, one has certain rights and the VictimWitness-Staff is there to help them understand these rights, and ensure that they are complied with.

'Victims' Rights': The victims have the right to be treated with dignity and respect. They have the right to be protected from intimidation and harm. Victims have the right to be present at all Court proceedings, the right to confer with government attorney presenting the case, the right to compensation subject to their meeting the criteria and the right to be informed concerning the criminal justice process.

Services Provided: The New York State Crime Victims' Board provides services to N.Y. State residents through a network of agencies, as well as, financial aid, such as payment of medical expenses, counselling expenses, lost earnings, burial expenses etc. to victims of crimes.

Notification: The Staff provides notification to victims and witnesses regarding the case status and court proceedings.

Consultation: Victims are allowed to provide inputs at various stages of the case, including the dismissal of charges, release of accused pending trial, plea agreement terms, victim views on sentencing and restitution. The staff is available to ensure that the views expressed are communicated to the Assistant (US) Attorney, assigned to the case.

Court Assistances: The Staff is available to accompany the victim/witness to the court proceedings.

Criminal Justice Process: The judicial system can be very confusing to those who are involved in a criminal case. Therefore, the staff is there to help explain each step of the process and to notify the provisions, about all the court dates, times and locations and confirms the presence of the victim/witness, if needed. The Staff will explain the persons what he or she can expect when they are in the court.

Transportation to Court: The Staff can arrange transportation of the victim/witness, if necessary, from the place of the residence to the Court.

Referral services: In cases where victims require medical or counselling referrals, the staff will provide victims with a list of applicable services located in the victim's area. Services include counselling, shelters, housing and many emergency referrals.

Other services: Impact Assessments: A victim's written or verbal statement is submitted to the Judge to review, before sentencing the defendant. It personalizes to the Judge regarding the emotional, physical and financial impact the victim or witness has suffered as a direct result of the crime. The Staff will provide a Forum to the victim/witness prior to the sentencing.

Verbal-Victim Impact Statement: Violent crime victims and victims of sexual abuse have the right to make a victim impact statement at sentencing.

Resources for Protection by Staff: The Staff has certain resources available to assist victims and witnesses who feel threatened or who have threats.

Victim's privacy: The US Attorney's office takes every precaution to ensure that the victim's and witness's privacy is maintained.

Separate Waiting Area: Witnesses waiting to testify can wait in a separate area and away from the defendant. The Staff is available to ensure the witness's comfort while waiting to testify.

Safekeeping and Prompt Return of Property: Every effort is made to return the personal property to victims as soon as the circumstances of the case permit.

Notification to Employer/Creditor: The Staff can write a letter, where a victim or witness requests it, to the employer certifying that the person's presence is required in Court, or to the creditor, as to the trouble the person is experiencing in repayment,- because of the trauma of the crime.

7.7.3 Victim-Witness Programme of District of Maryland (at the US Attrorney's Office):

The victim's rights enumerated under this programme are:

(i) the right to be treated with fairness and with respect for the victim's dignity and privacy;

(ii) the right to be reasonably protected from the accused offender;

(iii) the right to be notified of Court proceedings;

(iv) the right to be present at all public Court proceedings related to the offence, unless the Court determines that the testimony by the victim would be materially affected if the victim heard other testimony at trial;

(v) right to confer with an attorney for the Government in the case;

(vi) right to restitution;

(vii) right to information about conviction, sentencing, imprisonment and release of offender.

The programme deals with (a) testifying in federal Court, (b) witness travel information, (c) victim-witness safety through US Marshall's Service, referral resources.

The victim-witness can seek a Protective Order from the Judge giving information about the abuser and recent incidents as well as past incidents. The Court can pass an order against the abuser to:

(2) refrain from abuse;

(3) stop harassment or cut off contact;

(4) stay away from the residence of the victim/witness;

(5) move out of the house.

The Criminal Injuries Compensation Board (CICB) of Maryland provides financial assistance to innocent victims of crime who suffered physical injur.- for their medical expenses and loss of earnings, and in case of homicide, for funeral expenses and loss of support on the part of victim's dependants.

7.7.4 Victim Witness Protection Programme in Michigan (East District)(at US Attorney's Office): The programme ensures that crime victims are informed of their rights and to assist the victims/witnesses throughout the criminal court process. The Unit remains committed to expanding efforts to assist victims in need of justice and healing after the crime.

7.7.5 Witness Security and US Marshall's Service: The service provides for the security, health and safety of government witnesses and their immediate dependant.- whose lives are in danger as a result of their testimony against drug traffickers, terrorists, organized crime-member and other major criminals.

The Witness Security Programme was authorized by the Organised Crime Control Act, 1970 and amended by the Comprehensive Crime Control Act, 1984. (See also Witness Security Reform Act 1984). Since its inception, more than 7500 witnesses and over 9500 family members have entered the Programme and have been protected, relocated and given new identities by the Marshal's service.

The successful operation of this programme is widely recognized as providing a unique and valuable tool in the government's war against major criminal conspirators and organized crime. Since the programme's inception, it has obtained an overall conviction rate of 89% as a result of protected witness's testimony.

Witnesses and their families get typically new identities with authentic documentation or by relocation. Housing, medical care, job training and employment can also be provided. Subsistence funding to cover basic living expenses is also provided to the witnesses until they become self-sufficient in the relocation area.

The Service provides 24-hour protection to all witnesses while they are in a high threat environment, including pre-trial conferences, trial testimony and other Court appearances.

In both criminal and civil matters involving protected witnesses, the Marshall's service cooperates fully with local enforcement and civil authorities in bringing witnesses to justice or in having them fulfill their legal responsibilities. A recidivism study found that less than 17% of protected witnesses with criminal histories are arrested and charged after joining the programme.



Witness Identity Protection and Witness Protection Programmes Back




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