American Journal of Trial Advocacy

Authored by:  Howard J. Zlotnick

Abstract

Recalcitrant witnesses present challenges for federal prosecutors at three key stages: during the pre-indictment investigation, the pre-trial interview, and the trial itself.  Building a case and securing convictions often require prosecutors to compel reluctant witnesses to testify, despite their loyalty to or fear of the defendant or his associates.  Additionally, some witnesses believe they can refuse to participate in the criminal justice process and ignore grand jury and trial subpoenas.  Once the trial begins, some witnesses may become hostile or alter their testimony.  This Article discusses methods available to persuade these witnesses to testify and, once they do, ensure they tell the truth. 

In major conspiracy cases, accomplices often turn into prosecution witnesses because they face lengthy sentences and are motivated by the chance to reduce their sentences through cooperation.  However, sometimes potential sentence reductions are not enough to convince witnesses to testify.  Some street gangs and drug trafficking organizations have rules that forbid members from snitching—cooperating with law enforcement—and those who testify against their accomplices may face retaliation against themselves or their families.

 Sometimes, lower-level members of a criminal organization who have pleaded guilty or been convicted at trial and who understand the organization’s inner workings refuse to testify, even when granted immunity. They often choose not to testify, not only out of fear of retaliation, but also because of loyalty or family ties to the people under investigation. 

Another challenging group of witnesses includes those who are not connected to the criminal organization and choose not to participate in the criminal justice process for their own reasons.  They often cite fear of retaliation, indifference, or a desire to avoid the stress of a jury trial.  Sometimes, they are victims or witnesses caught in the wrong place at the wrong time who prefer not to get involved and resent the disruption to their lives. 

In short, witnesses can pose challenges from investigation through trial.  This Article proposes solutions to those issues.  It explains legal tools like material witness warrants and civil and criminal contempt sanctions used to handle resistant witnesses at each stage of a federal case.  The Article clarifies the differences between civil and criminal contempt, advises on when to use each remedy, and discusses their limitations.  It also recommends steps to ensure that reluctant, subpoenaed witnesses appear in the grand jury or the trial court. 

 The Article examines witnesses who invoke the Fifth Amendment privilege against self-incrimination and the considerations prosecutors should weigh before granting statutory immunity.  It also proposes strategies for handling witnesses who, without legal risk, invoke the Fifth Amendment to avoid testifying before the grand jury. 

Finally, the Article discusses the rules of evidence concerning hostile witnesses who testify at trial and then suddenly and intentionally refuse to reveal the incriminating information they previously shared.  It will cover the benefits of presenting witnesses before the federal grand jury to protect the case against potential changes in witness testimony based on the advantages of the Turncoat Witness provision for prior inconsistent statements over unsworn statements.