In my story, the a witness is testifying against a gang in a case. Since she is a witness and her life may be in danger as a result, the police assign a cop to watch her from a squad car, outside her house, and call for back up, in case anything happens to her. I did some research as to what the police would do, but found the real life results to be kind of problematic for my story. Basically if intruders break into a house and a cop sees possible intruders in the windows, I was told by police that the cop is not allowed to go inside procedure wise, because doing so, would put the house owner in further danger likely. The cop is to stay put and wait for back up. Once back up arrives, they are still to remain put, and wait. It is even a bad idea for the police to announce that they are there, because doing so, can create a hostage situation. But if the police are not allowed to announce that they are there, and are not allowed to go inside, and the real procedure is to just keep waiting and waiting to see what will happen, the house owner can be killed by the gangsters, which is what I don't want for my story. I want the owner to be saved so the story can go in the directions I want it to go, but if the police are just suppose to wait, and not do anything, then she dies. So is their anything I can do to write it, so that the cop does save her, but at the same time, be realistic about it? I would like to write it so that he feels compelled to save her, without waiting for back up, even though they are coming, thinking that time is of the essence, cause I wanted to write, so that it's one man, in a dark house, sneaking around, and just creating suspense that way. But can make it work realistically, if it's not normal procedure?
I'm not sure where you found that, but it doesn't sound accurate to me. Or, at least, it sounds very limited. It's possible that policy is simply to stay put and call for backup if he just sees a possibly-maybe intruder through the windows, but there's a big difference between maybe seeing an intruder and definitely seeing a couple of guys with tommyguns breaking down the door. Or, if he hears the homeowner scream, that's also plenty of reason to go inside.
That's wrong. It sounds like what the OLD procedure was for an active shooter in places like campuses, schools, malls etc. Now, even that is, first on scene goes in as soon as possible and if it's reasonably safe for the officer. As far as arriving at the house, in both departments where I worked, the SOP (standard operating procedure) was that arriving cars would turn off any emergency lights and sirens several blocks away and park in front of a house at least two houses down and proceed on foot. We never assigned an officer to sit outside in a car as protection. If it's a gang or any form of organized crime syndicate, they would be put in protective custody, as in a hotel somewhere with officers in the next door room. Preferably with rooms with an internal door between units. If it was less severe, I can see a patrol car with a two person team assigned to stand watch. But in any case, if they saw anything suspicious they would call in something like this: "Control, this is (call sign or unit number). Investigating suspicious activity, stand by," And with that if it was nothing, the watch officer would report in all clear. If not, then the appropriate back up would be sent. The worst case scenario is if no response is given back to the dispatcher, and no reply is given to calls from dispatch, either on radio, or on cell phone (either personal of if issued, a department cell) That's when the "cavalry" shows up, because it's an unknown situation, from a medical emergency to a gang or heavily armed bad guys. Hope it helps. I'm drawing on my experience of over 7 years in law enforcement. Good Luck.
Okay thanks for the input. The reason why my witness character is not in protective custody in a different location, is because the witness was being uncooperative, and not giving the police any information. So the prosecutor subpoenaed her to testify anyway, cause he really wants her on the stand. But I was told by a cop before, that a witness would not get protective custody, if he/she does not give any information in exchange. This is why I wrote it so that she is forced to be at home with a cop watching her place from outside. But is that true that the would not get any protection, if they did not cooperate at all, or give any information, and have to be subpoenaed?
Not at all. You can't NOT protect somebody for not wanting to testify. After all its their fifth amendment right to remain silent. Even if not charged a suspect has the choice not to speak or testify. In fact, if this was the case, any defense attorney would move to remove such testimony, based on police coercion. (Excuse my lack of clarity on this post. Its 7am and I didnt sleep yet)
Okay thanks. But the court can still subpoena a witness to testify, even if the witness is remaining silent and refusing to give any statements, right? There have been real life cases where witnesses were subpoenaed to testify, even if they chose not to cooperate. They can remain silent on the stand, if they wish, but they are still subpoenaed in those cases. Does this count as police coercion, and the defense attorney could remove the witness? I am not understanding though, how in my scenario, subpoenaing a witness, counts as police coercion. So if a witness does not want to testify but is still subpoenaed, do they get moved into a hotel, or do they stay at home, and cops watch from the outside? Or you are saying it counts as coercion, if they do not give her protection. But if the defense attorney, were to bring that, the attorney would need to find out where she is staying and whether or not the police are protecting her. Does the attorney have access to that information?
Forget the defense attorney, the prosecutor wouldn't want a silent witness on the stand in the first place. OP -- is it possibly a character who could have some kind of background involvement with the gang, who is being forced to testify in exchange for amnesty regarding previous gang involvement from the state?
Just to be clear, the 5th Amendment protects you against providing testimony that is self-incriminating. If she has testimony regarding another person's crime, the 5th Amendment doesn't shield her.
Oh yes, I see, well she is being subpoenaed to testify against someone else. No, it's not really possible for my story, cause of the way it goes. Normally the prosecutor would not want a silent witness, but this particular character, wants to and is willing to take the risk for his case, cause it's in his character for this case.
Subpoenas aren't magic wands and the fifth amendment absolutely still applies here. Less directly so, but it's the same legal logic. A subpoena can compel a person to attend and be questioned but it cannot compel them to talk. The court doesn't know what they actually know or what they remember and as a result the court doesn't know which answers might or might not incriminate them. As a result anyone has the right to keep silent under the auspices of self-incrimination because the court essentially has to take my word for it that the answer might incriminate me. For you to be able to prove if it would or it wouldn't incriminate me you have to know the answer which means if it is incriminating I'm screwed. While we don't quote the fifth every time we do it, we are using it's protection by not speaking. A logical consequence of not being forced to speak against your own interests is that you cannot be forced to speak full stop. You can be forced to face questioning, you can be forced to produce physical evidence and face the judgement of your peers but you cannot be forced to say something because any answer could be against your own interest. Not answering alone is typically a really bad defense in court and that's why we so seldom see the fifth directly invoked, but it's protection against compelled testimony is ingrained into everything. This doesn't even get into problems with a court trying to read peoples minds. For example; if a court could compel me to testify what would happen if I couldn't remember? By law I am required to tell them what happened but I am unable to comply even if I'm willing. We simply cannot lock up people for forgetting things, or misremembering; these people aren't even accused of a crime. So we don't. We can't compel their testimony because it's monstrously injust. But since the court can't read minds either, they can't confirm who actually remembers and who doesn't want to answer. Even if you know a person saw something you can't prove they remember it. So we have to take it at face value when a person says they can't remember. We have to treat silence as being legal. If someone doesn't want to talk we can't make them. Over here we don't have that stock miranda right spiel but you still get cautioned by the cops as to your rights. The phrase we use over here is 'You do not have to say anything but it may harm your defense if you fail to mention when questioned something you later rely on in court'. That covers it pretty well. Under no circumstances do you have to say anything. You would be well served to cooperate, it may in fact be to your benefit to tell us your version of events now, but you don't have to and nothing can make you. Edit - As a point of logic why would we offer reward money for witnesses if we could compel their testimony? Lying under oath is illegal already, so it's not that we think people need motivation not to lie.
That's true. But why do prosecutors subpoena uncooperative witnesses to testify then, not knowing what they are going to say? Here is the real life case, I got the idea from, for my story: http://www.slate.com/blogs/xx_factor/2014/02/25/alleged_rape_victim_arrested_to_force_her_to_cooperate_in_the_case_against.html The actual criminal case in my story is very different, but the prosecutor's reason for securing the witness's testimony is the same. In the real story though, the witness avoided being subpoenaed and was arrested with a material witness warrant. In mine, the witness is subpoenaed. But that is still securing the witness's testimony. So why would a prosecutor go through all that trouble, when the witness can just lie to get out of it? What is the prosecutor's reason, as in that case?
@LostThePlot what you've stated is incorrect in the U.S. Witnesses can be, and are, held in contempt of court for refusing to testify.
Agreed. The 5th Amendment would not shield the witness in this case at all, and since the 5th Amendment is the 5th Amendment to the Constitution of the United States of America, we could only possibly, logically, be speaking about American Jurisprudence when it is invoked. If other countries have similar provisions and protections within their systems of jurisprudence, I doubt that they would go by the same name, number, clause, amendment, paragraph, etc. From Cornell University Law School, I cite the following: Fifth Amendment: An Overview The Fifth Amendment of the U.S. Constitution provides, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: grand juries for capital crimes, a prohibition on double jeopardy, a prohibition against required self-incrimination, a guarantee that all criminal defendants will have a fair trial, and a promise that the government will not seize private property without paying market value. While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment's provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.
But the real story I posted the link to was that, in the U.S., they legally forced a witness to testify. If the witness can lie or take the fifth, then what was the point of the prosecutor doing that in a real case? In my case and in the linked one, I got the idea from, the witness is suppose to testify against someone else, and not any crime she was a part of. So would a prosecutor subpoena her to testify then, if it's against someone else?
Go read the story you posted again. They used a material witness order not to compel her testimony; they did it to compel her presence. They did that because she had already agreed to appear then blew them off. She agreed to give her testimony of her own accord , let the prosecutors begin to build a case around that then just refused to show up. You aren't allowed to do that. If you agree to provide testimony that's legally binding and failing to provide it will result in your being jailed for contempt until you provide the testimony that you agreed to provide. That's a whole other thing. She agreed to testify then changed her mind. That's not the same thing, not in the slightest. If she had never said a damn word to the prosecutors then the prosecutors would not have been able to compel her testimony. This is a common problem for police; where witnesses are scared or apathetic and won't say a word to police. Why is the phrase 'the guy won't talk!' something we've heard a million times in cop shows if they can make a phone call and compel someone to talk by locking them away for the rest of their life until they comply. That is simply not how the system works. If you become part of the case and don't follow it up then you are literally in contempt of court. If you tell police you don't remember they can't compel a damn thing. Again; think about it logically. What happens if the police ask me (a witness) to describe a guy that I can't remember but they think I actually can? If they can make a call and compel me to speak nevertheless then the end result would have to be witnesses going to jail for the rest of their lives with no possible way to ever leave without being tried of anything. That doesn't happen because that's, you know, horribly illegal. That's not to say that some sherif from Craphole, WY might not try but if he did then I demand a habeas hearing, assert that my 4th amendment rights have been infringed and sue him for all the money. Now, if I describe the guy to a sketch artist and ID him at the line up and then when it comes to trial I don't show up then you bet they have the tools to ensure that I have to face up to what I originally said but that's not the same at all. Cooperation means, well, cooperating. It's literally the opposite to silence. Remember; the law works the same whether I am choosing not to speak or whether I actually don't know. And on top of that; here's what wikipedia has to say about the right to silence in the USA from https://en.wikipedia.org/wiki/Right_to_silence#United_States The Fifth Amendment to the U.S. Constitution provides that no person shall be compelled in any criminal case to be a witness against himself or herself. At trial, the prosecution can neither call the defendant as a witness, nor comment on the defendant's failure to testify.[25] Whether to testify or not is exclusively the privilege of the defendant.[26] Outside the context of detention or arrest, a person has no duty to answer any questions of police at all; and if judicial compulsion is sought by the State, the person can still invoke his or her Fifth Amendment privilege against compulsory self-incrimination, and refuse to comply. Only if granted immunity by the state, in a formal proceeding, from having any testimony or evidence derived from the testimony used against him or her, can a person be compelled to answer over an assertion of this privilege.[27] If police detain (or arrest) a person, they must advise him or her that he or she has a right to remain silent, and the right to an attorney, among other rights. If the detained person invokes these rights, all interrogation must cease, and nothing said by the defendant in violation of this rule can be admitted against him or her at trial.[28] On June 17, 2013, the U.S. Supreme Court ruled in Salinas v. Texas that an individual must specifically invoke the Fifth Amendment right to "remain silent", otherwise silence can be used against him or her in court.[29] It's in the Miranda rights you know? You have the right to remain silent? Yes? Being a witness doesn't mean you lose that right. Of course you have the right to remain silent. Seriously; how do I know more about your legal system than you do?
You don't. You keep making misstatements of fact and misread your own sources. I suspect explaining it to you would be futile, so I'll just suggest that Ryan not rely on you for legal advice, and instead look at cases where witnesses have been compelled to testify or else jailed for not testifying, which can and does happen and wouldn't ever happen if the Fifth Amendment works the way you think it does.
@Ryan Elder here is some very general information. My suggestion for any of this sort of thing is to search for a case that has facts similar to yours or from which you can extrapolate. Also, look at cases from the relevant jurisdiction and courts. U.S. Constitutional Law is federal, and Supreme Court decisions bind all the lower courts. States may have their own Constitutional provisions, and a lower Federal Court decision does not bind State courts even when the state court is in the circuit where the Federal Court has jurisdiction. For a novel, I think you can go with general principles for the most part. http://litigation.findlaw.com/going-to-court/may-the-court-force-me-to-testify.html
Also, Ryan, you might look at the Freddy Gray case. Wasn't an officer forced to testify there? And in that case he had a legitimate 5th Amendment privilege, which non-defendants aren't always going to have. I think they gave him limited immunity relating to his testimony and the court said he has to testify.
Seriously, you don't. Steerpike and I both work in the sphere of jurisprudence. As your track record here has made it abundantly clear that you are wont to do, you are misinterpreting things to your own convenience.
I'm sorry but the link you just posted says that the fifth amendment works exactly the way I'm telling you it does. Answer me this: What if I am subpoenaed to present testimony that I do not know? And how does that differ from me simply telling a grand jury or jury that I don't remember? Please explain to me how the court can compel me to say something different if I say under oath I can't remember. In short; tell me how this 'compulsion' works in practice. You torture a lot of people over parking tickets?
Okay, thanks for the advice everyone. I looked up the Freddie Gray case, but I could not find any part where an officer HAD to testify as oppose to take the fifth. I cannot find the HAD TO in any article so far.
I pulled up this link. Haven't read through it, but the headline suggests the court said it was OK to force him: http://hotair.com/archives/2016/03/08/officer-in-freddie-gray-trial-will-be-forced-to-testify-against-fellow-police/
Perhaps it has something to do with this: Going by that article, this case 'has been a mess from the beginning.' Not all of the prosecution are convinced it will work. So who knows what machinations are going on in that messy case. Anyway, I'm probably off-point. So I'll leave you learned fellows to get on with the discussion.
My gut reaction is - does it matter? Are you writing fiction or a manual? As a former forensic scientist I despair at the portrayals of forensic science and crime scene investigations in many stories and TV shows. However, they are stories for entertainment. If what they do is consistent with a character's actions and personality then you can get away with most things. Let your character save the witness and then allude to an investigation elsewhere. By the time your story ends no-one will care what happens to that investigation.
http://www.rcfp.org/jailed-journalists This is about journalists who were jailed for refusing to testify. Presumably a journalist, after writing a story or book, can't get away with saying, "Who told me all that detailed information that I wrote and published? Uh, it's slipped my mind." That suggests that there are probably countless other situations where, "Uh, it's slipped my mind," isn't going to work.
