United States of America

[a. General Information

|1. Please describe the framework (legal provisions and established practice) governing the use of measures protecting witnesses and pentiti.

JThe Attorney General of the United States of America, through the {Organized Crime Control Act of 1970, was given the authority to provide for [the security of witnesses who were co-operating and agreed to testify [truthfully in cases involving organised criminal activity or other serious Offences by relocating them and providing them with the necessary support [services. Legislation was amended and updated in 1984, resulting in the ■Witness Security Reform Act of 1984 (Title 18, United States Code, (Section 3521 et seq.), which is the legislation under which the Federal Witness Security Program (Program) currently operates. Protection is provided to both witnesses to be relocated in the community, and [incarcerated witnesses (prisoner-witnesses). Some of the incarcerated witnesses subsequently may qualify for relocation in the community through ie Program upon their release.

Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witnesses and pentiti to co-operate with justice.

The provisions and practice governing the measures encouraging witnesses [and pentiti to co-operate and tell the truth under oath about what they know ^ not directly related to the protection afforded to witnesses. Witnesses tdecide to co-operate with the government when they are convinced; it is in ftheir best interest to do so. Typically this occurs when persons involved in \ crime become aware that they will likely receive a very long prison term and i they wish to increase their chance of earning a significant reduction in the prison term. It is very rare that innocent bystander eyewitnesses who are neither investigators nor seriously involved in a crime will have knowledge of crucial incriminating evidence that is likely to result in retaliation and bodily harm to them. If the persons participating in the crime can provide significant usable truthful evidence that results in the prevention of a significant crime or the conviction of a significant criminal, a prosecutor may, at his/her discretion, agree to one of several courses of conduct that may ultimately result in a lower sentence for that co-operator. For example, these actions include a prosecutorial recommendation (either very generally or in some cases with many specifics) to the sentencing judge at the time of sentencing for a lower sentence, after the co-operator has truthfully pled guilty to all the crimes he/she has committed and after the co-operator has rendered his/her co-operation and testimony, based upon the results actually obtained from the co-operation and to a lesser extent, the exposure to harm that the co-

operator has faced as a result of his/her co-operation. Another option available is a post-verdict motion to a judge to reduce the sentence of an already convicted person who did not decide until after he/she was convicted and received a long sentence to co-operate and offer some information that the prosecutors, at their discretion, found to be of significant value. A third option more rarely used is a decision by the prosecutor, at his/her discretion not to prosecute the co-operator for one of several crimes that he/she may have committed, or even for every crime committed, if the co-operation is ultimately as valuable as proffered. This latter immunity from some or all prosecution is more rarely offered by the prosecution and almost never granted prior to the rendering of the proffered co-operation, because once granted it cannot be revoked, and at that point, the co-operator may lose all motivation to co-operate.

Where either the prosecutor or investigative agent believe that the co­operation promised, if delivered, will subject the co-operator or their immediate family or associates to serious and sustained retaliation and harm, then the prosecutor can sponsor the co-operator as a candidate for special witness protection measures either while the person is in prison or in the community, by means of a petition to the deciding supervisory officials at the headquarters of the Department of Justice (DOJ). Early promises to a witness about receiving witness security by the police level investigator or the trial prosecutor are not authorised, and if given by mistake, are not binding failing later independent approval by headquarters officials. Witness security is not a reward mechanism for co-operators, although other separate cash reward mechanisms do exist. It is a difficult programme for the witnesses, similar to "voluntary" exile from one's extended family, community and friends. It exists so that people who have already decided to co-operate do not have to fear that when their co-operation is made known, and if it is likely to be traceable to them, that they will face sustained retaliation resulting in serious bodily harm or death.

3. Can measures/benefits encouraging the co-operation of witnesses and pentiti be used in combination with protection measures (arrangements concerning trial proceedings, sentencing conditions, special penitentiary regimes, etc.)? If so, please specify and indicate under which conditions they are applied.

As explained above in the reply to question 2, protection measures are intentionally kept separate from, and are available independently and in addition to, any benefits to encourage co-operation of witnesses and pentiti.

4. For which kind of crime and under which circumstances can witness and pentito protection be applied? Can the measures be extended to the relatives or other persons close to the witness/pent/to?

Witnesses and pentiti can be protected through the Federal Witness Security Program (described in the reply to question 1) if they are witnesses for the Federal Government or a State government within the United States of America in official proceedings concerning an organised criminal activity or other serious offence, and they are endangered as a result of that co­operation.

Immediate family members can be protected along with the witness through the Program, if an analysis of the threat determines that it is necessary or for compelling humanitarian reasons (e.g., a minor child). Consideration can be given to providing protection to extended family members through the Program, if the threat to them warrants it. If the Program is not being used, and the investigative agency involved in the case takes responsibility for the protection of the witness, family members and others closely associated with the witness can be protected in the same manner as the witness, if deemed by the investigative agency to be necessary and appropriate.

5. What urgent measures (e.g. immediate relocation to a secret place) can be taken in order to protect witnesses and pentiti?

The investigative agencies with which witnesses and pentiti are co-operating can provide them with money to relocate to another area. If protection is needed just for a short period of time before trial and during trial, the investigative agencies have the ability to secure safe housing for them for a short period of time. The federal prosecuting offices also have funds set aside to provide money to such individuals to enable them to move to another area temporarily, while the danger is at its greatest, through the Emergency Witness Assistance Program (EWAP), administered by the Executive Office for United States Attorneys, DOJ headquarters. As far as the EWAP funds are concerned, victims qualify for the funds even though they may not testify, because they are considered potential witnesses.

Immediate, temporary, protection by relocation to a secure area can also be provided through the Program before all the necessary information is received and reviewed in the rare situation where the investigative agency is unable to provide temporary protection through housing in a secure area. In these cases, a final determination as to the propriety of providing full Program services must be made without undue delay after such protection is initiated.

6. Which institutions are involved in the protection of witnesses and
pentiti and what is their role (e.g. law enforcement agencies,
special independent agencies, prosecutor's offices, judicial
authorities, etc)? How does co-operation between the relevant
institutions work, in practice?

See the reply to question 5, as far as the role of investigative agencies is concerned. Prosecuting offices are involved by determining which witnesses will be used in prosecutions, and making applications to use the Federal Witness Security Program, if that level of protection is believed necessary. If witnesses are authorised to receive Program services, the investigative agency, through its headquarters, and the sponsoring federal prosecutor, coordinate with the Office of Enforcement Operations (OEO) in the Criminal Division, DOJ, which authorises witnesses into, and then monitors and oversees, the Program, when the witness is needed for testimony, or other issues arise concerning the witness. These other issues commonly include the evaluation of actions initiated by witnesses that could lead to the termination of their participation in this difficult Program, or the request by a witness thereafter to stay in or re-enter the Program. The United States Marshals Service (USMS) administers the day-to-day operation of the Program for witnesses relocated in the community. The Federal Bureau of Prisons (BOP) administers the day-to-day operation of the Program for witnesses being protected while incarcerated.

7. Are there any specific provisions governing the protection of
witnesses and pentiti in relation to acts of terrorism? If so, please
specify. Are there any specialised counter-terrorism institutions? If
so, what is their role in the protection of witnesses and pentiti in
relation to acts of terrorism?

There are no specific provisions governing the protection of witnesses and pentiti in relation to acts of terrorism. There are specialised counter-terrorism governmental prosecution institutions, but the government prosecution officials who work in theni do not utilise the regulations designed to protect witnesses and pentiti in any special manner not available to other prosecutors. However as a practical matter, when made, requests for witness protection in serious terrorism cases are more likely to be well justified and supported by those prosecution officials, and consequently likely to be granted by supervisory headquarters officials in the DOJ.

8. How does the framework governing the use of measures protecting
witnesses and pentiti and encouraging them to co-operate with
justice guarantee respect for human rights and individual
freedoms? Please indicate the procedures in place, if any, to
monitor compliance with human rights standards.

Incarcerated witnesses who must voluntarily agree to maintain their anonymity as Program participants while in prison are provided the

opportunity to meet with Program officials not rendering their day-to-day care several times a year in order to express any problems, including with their treatment, that the witnesses believe they are entitled to have corrected. Relocated witnesses are provided with a special contact in their area with whom they can meet more frequently for the same purpose. In addition, these witnesses, if they use their original name and are careful to protect their new identity and location, often contact, through secure means, either their original attorney, the original government investigator, the original prosecutor, or a contact person in the Program headquarters at the DOJ to raise concerns that they wish to have addressed by the Program officials. If the concerns are not resolved, further review can occur by an official in the headquarters of the DOJ who has not previously ruled on their specific concern, or they may choose to voluntarily withdraw from the Program and its restrictions, and they occasionally file a lawsuit in a court in order to obtain the procedural redress listed above if they perceive it has not been properly rendered (i.e., either proper first level Program consideration, or an independent review within the DOJ, of their concerns). By statute, substantive determinations by the DOJ witness security officials are final and not judicially reviewable. While not frequently employed, protected witnesses who appropriately protect their new identity and location can also ask two other types of officials to vindicate their concerns. These two types of officials are internal DOJ ombudsmen such as in its Office of Inspector General, who investigate claims about irregularities in the internal operation of the DOJ, and Chairpersons of various United States Congressional: committees who have the ability to request written and oral answers to: questions that they believe warrant a response from DOJ officials. In [addition, a record of the respective responsibilities of the protected witness [and Program officials is maintained by the Program and available for the protected witnesses to read. It documents the initial mutual understandings, I the strict conditions to which the witnesses can expect to be exposed if they wish to remain in the Program, and the right of the witnesses to withdraw from the Program. The ongoing concerns and behaviour of each witness is I similarly documented and safely maintained.

I In addition to the measures noted immediately above and even in the absence of specific requests, the internal DOJ ombudsmen and United States Congressional committees each conduct regular periodic reviews of all DOJ programmes, including this Program.

b. Procedural measures

9. At which stage(s), and in which context, is it possible for witnesses and pentiti to benefit from procedural measures of protection?

Witnesses are eligible to be considered for the Program immediately after they offer their co-operation, if it is assured that a prosecution will take place in which they are expected to be a witness, their agreement to testify is

assured, and there has been a sufficient proffer, often under oath, of the testimony to be provided that demonstrates that it is important testimony in a very significant case that is not available from any other source. It is preferable that the witness has testified at a Federal Grand Jury, and that the case has been indicted, although it is not a requirement. The witness must be firmly committed to testifying as promised, or "locked into" the proffered testimony, so that Program funds are not wasted.

10. Is there the possibility for witnesses and pentiti to obtain legal
assistance at this (these) stage(s)?

Yes, the majority of witnesses in the Program, or being considered for the Program, are being prosecuted in connection with the case in which they are co-operating, and are represented by counsel in that regard who typically know their original true identity, all the particulars of their involvement in the crime, and the substance of the truthful testimony that they agree to provide. Often the counsel to the witness is in the best position to help the witness evaluate whether co-operation with the government is in the best long term interest of the witness, before another co-operator involved in the crime arranges an agreement to co-operate with the government rendering co­operation with this witness unnecessary and unwarranted.

11. Are there alternative methods of giving evidence which allow the
protection of witnesses and pentiti from intimidation resulting from
face to face confrontation with the accused? If yes, please specify
(e.g. full or partial anonymity, video-conference, disguise,
exclusion of the defendant from the courtroom when the witness is
giving evidence, exclusion of the media or the public from the trial,

■ etc.) and indicate under which conditions these methods are used.

Testimony by live two-way video-conference is not normally a part of this Program but is available and is occasionally used outside the Program, such as with certain vulnerable victims. Those victims include juvenile victims of sexual crimes and where it is impossible for the witness to be present at the trial for health reasons. While not an ordinary occurrence, the media and public can be excluded from the trial if there are extreme security concerns, but high level DOJ approval is needed in order to "close" a courtroom. Artificial disguises are not ordinarily used in connection with court testimony in criminal cases, but are sometimes used if a witness is testifying at a Congressional hearing. More commonly, a court witness may purposely alter their hair style or arrange to have their appearance partially screened or obstructed from the public gallery, though not from the jury. The true identity and visual confrontation and cross-examination of the witness are intentionally maintained in order to allow the judge or jury to be able to place the greatest weight, without restriction, on the testimony of the witness. If the witness is providing unique evidence of guilt, then limiting the intrinsic value

of that evidence by masking the source, even partially, from the judge or jury is self-defeating in that it provides the defence with a key weakness to attack in the government's proof of guilt. The key witness must be subject to the full examination of the judicial process or it will fail to carry the maximum persuasive value. This also makes practical sense since criminals will quickly figure out the true identify of any witness, with whom they probably were previously well acquainted, once the witness has offered this kind of unique crucial testimony.

12. On which grounds and on the basis of which criteria can anonymity
be granted? Is there the possibility to obtain legal assistance at
this stage?

For the reasons stated above, there are no bases for preserving anonymity if the testimony of the witness and the need for possible witness protection is being considered. However, co-operators who do not agree to testify at trial but offer only untraceable information or leads that, at their discretion, criminal law enforcement investigators decide to use as the basis for search warrants or other investigative or judicially authorised special investigative techniques may have the anonymity of their true names protected. In that case, a representative of law enforcement will typically have to vouch under oath for the reliability of the anonymous witness and keep a record of the details. In extraordinary cases where there is strong evidence to question the reliability of the anonymous witness, the law enforcement officer who vouched for the witness may be required in a closed and non-adversarial ex parte judicial proceeding to justify the good faith grounds for his/her belief in the trustworthiness of the anonymous witness to the judicial officer.

13. Are pre-trial statements of witnesses and pentiti and testimonies of
anonymous witnesses and pentiti regarded as valid evidence? If
yes, under which conditions?

Not typically by protected witnesses as valid evidence at trial. For other uses, see the reply to question 12.

14. Is it possible, and if so, under which conditions, to use information
provided by pentiti? How is their credibility assessed?

See the reply to question 12. The witness's credibility is assured by having a named law enforcement officer, who is familiar with the anonymous witness, list under oath several other circumstances where the unique and important information of the witness has subsequently been confirmed to be true, and also convey any other facts that support the general trustworthiness or untrustworthiness of the witness and his/her trustworthiness in this specific situation.

15. Which are the opportunities for the defence to exercise its rights,
including the right of the accused to challenge the
witness'/penf/to's credibility in criminal proceedings (including at
the pre-trial stage) and the respect of the "equality of arms"
principle?

The defence does not have access to the anonymous witness, as described in the reply to question 12, but if the defence can bear the difficult burden of showing that the information is unreliable and can produce some evidence of bad faith, he/she can require that the supporting documentation and law enforcement officers be examined by the court, ex parte, and if not presented in good faith, invalidated.

At the trial stage, where such protected witnesses are concerned, the defence is allowed full discovery as close to trial as possible under the rules and full equality of opportunity to challenge the credibility of this witness, as compared with any other witness.

See the reply to question 11. с Non-procedural measures

16. At which stage(s), and in which context, is it possible for witnesses
and pentiti to benefit from a protection programme?

See the reply to question 9.

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