9-6.100
Introduction
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.
9-6.200
Pretrial Disclosure of Witness Identity
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
of victims and witnesses 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.
[updated November 2000]
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