9-6.000
RELEASE AND
DETENTION
PENDING
JUDICIAL PROCEEDINGS --
18 U.S.C. §§ 3141 ET SEQ.
9-6.100 Introduction
9-6.200 Pretrial Disclosure of
Witness Identity
The release and detention of defendants pending judicial
proceedings
is governed by the Due Process Clause of the Fifth Amendment, the
Excessive Bail
Clause of the Eighth Amendment, and the Bail Reform Act of 1984.
The Bail Reform
Act of 1984 provides procedures to detain a dangerous offender, as
well as an
offender who is likely to flee pending trial or appeal.
See United
States v. Salerno, 481 U.S. 739 (1987).
For a discussion of the provisions of the Bail Reform Act
of 1984 (18
U.S.C §§ 3141 et seq.) and related case law
see the Criminal Resource Manual at 26.
Insuring the safety and cooperativeness of prospective witnesses,
and safeguarding the judicial process from undue influence, are among the
highest priorities of federal prosecutors. See the Victim and
Witness Protection Act of 1982, P.L. 97-291, § 2, 96 Stat. 1248-9. The
Attorney General Guidelines for Victim Witness Assistance 2000 provide that
prosecutors should keep in mind that the names, addresses, and phone numbers
are private and should reveal such information to the defense only pursuant
to Federal Rule of Procedure 16, any local rules, customs or court orders,
or special prosecutorial need.
Therefore, it is the Department's position that pretrial
disclosure of
a witness' identity or statement should not be made if there is, in
the judgment
of the prosecutor, any reason to believe that such disclosure would
endanger the
safety of the witness or any other person, or lead to efforts to
obstruct
justice. Factors relevant to the possibility of witness
intimidation or
obstruction of justice include, but are not limited to, the types
of charges
pending against the defendant, any record or information about the
propensity of
the defendant or the defendant's confederates to engage in witness
intimidation
or obstruction of justice, and any threats directed by the
defendant or others
against the witness. In addition, pretrial disclosure of a
witness' identity or
statements should not ordinarily be made against the known wishes
of any witness.
However, pretrial disclosure of the identity or statements
of a
government witness may often promote the prompt and just resolution
of the case.
Such disclosure may enhance the prospects that the defendant will
plead guilty
or lead to the initiation of plea negotiations; in the event the
defendant goes
to trial, such disclosure may expedite the conduct of the trial by
eliminating
the need for a continuance.
Accordingly, with respect to prosecutions in federal
court, a
prosecutor should give careful consideration, as to each
prospective witness,
whether absent any indication of potential adverse consequences of
the kind
mentioned above reason exists to disclose such witness' identity
prior to trial.
It should be borne in mind that a decision by the prosecutor to
disclose pretrial
the identity of potential government witnesses may be conditioned
upon the
defendant's making reciprocal disclosure as to the identity of the
potential
defense witnesses. Similarly, when appropriate in light of the
facts and
circumstances of the case, a prosecutor may determine to disclose
only the
identity, but not the current address or whereabouts of a witness.
Prosecutors should be aware that they have the option of applying for a
protective order if discovery of the private information may create a risk
of harm to the victim or witness and the prosecutor may seek a temporary
restraining order under 18 U.S.C. 1514 prohibiting harassment of a victim
or witness.
In sum, whether or not to disclose the identity of a
witness prior to
trial is committed to the discretion of the federal prosecutor, and
that
discretion should be exercised on a case-by-case, and
witness-by-witness basis.
Considerations of witness safety and willingness to cooperate, and
the integrity
of the judicial process are paramount.
| November 2000
| USAM Chapter 9-6
|