Attorneys on both sides face a delicate balance
By Ryan J. Foley
Associated Press
The first days of testimony at the trial of a former Minneapolis police officer charged in George Floyd’s death were dominated by witnesses to his arrest and countless videos that forced them to relive the trauma of it all over again.
One man who shouted “You can’t win!” at Floyd as the Black man struggled with police, bowed his head and sobbed on the stand. The teenager who shot widely seen bystander video cried as she talked about her guilt over not being able to help Floyd. A firefighter trained as an EMT broke down as she described her frustration because police prevented her from acting to save Floyd’s life. The young cashier who reported that Floyd used a $20 counterfeit bill to buy cigarettes — prompting a call to police — recalled his guilt as he watched Floyd struggling to breathe.
Attorneys on both sides at the trial of former Officer Derek Chauvin face a delicate balance in questioning witnesses who have experienced such pain while trying to advance their cases. The testimony raises questions about how witnesses who have suffered trauma are treated when they participate in the criminal justice system.
New York Law School criminal law professor Kirk Burkhalter, a former detective who leads a program on police reform, said the bystander testimony has been a powerful reminder of how police misconduct is a betrayal to the entire community.
“These people have been walking around with this pain for a year, unbeknownst to us,” he said. “They were victims of a crime. We just cannot forget that. They were trying to do their civic duty and they were prevented from interceding in something that was just completely horrible.”
Chauvin’s defense has even tried to paint some of the witnesses as part of a dangerous crowd, adding more pain, he said.
ARE THESE WITNESSES CONSIDERED CRIME VICTIMS?
Probably not. The law generally does not recognize the emotional toll on witnesses as a harm, Burkhalter said.
In Minnesota law, a victim is anyone who incurs “loss or harm as a result of a crime, including a good faith effort to prevent a crime.” Some of the witnesses testified that they sought to stop Chauvin from using force against Floyd, and even called the police to report his actions. They also described the emotional harm they have endured.
The legal distinction between a witness and a victim is important. Victims have rights in criminal cases, including the right to be notified and object to any proposed plea agreements, and to give victim impact statements at sentencing hearings.
DO WITNESSES QUALIFY FOR GOVERNMENT AID TO DEAL WITH THEIR TRAUMA?
Potentially. Witnesses to crimes may apply for mental health counseling and other benefits from the Minnesota Crime Victims Reparations Board.
Eligibility depends on individual circumstances and is decided on a case-by-case basis, said Doug Neville, a spokesman for the Minnesota Department of Public Safety. If approved, they could be eligible for up to $7,500 in counseling and healing services.
WHAT LEGAL PROTECTIONS DO WITNESSES HAVE?
Most of the laws and professional guidelines governing the treatment of witnesses are designed to protect their physical safety against retaliation and limit the inconvenience of having to testify.
National District Attorneys Association guidelines note that one of the greatest needs for witnesses is the assurance of safety against threats, harassment or intimidation. In Minnesota, a prosecutor can take steps to protect witnesses from having to reveal their home or employment addresses, telephone numbers and dates of birth.
Generally, witnesses are also compensated for their time and the expense of testifying, including $20 per day in Minnesota plus mileage and meals. They are to be notified when to show up, with any delays minimized. And employers in Minnesota cannot retaliate against witnesses who have to take time off to testify.
WHAT ABOUT THEIR EMOTIONAL WELL-BEING?
Prosecutors have a duty to present the truth in court proceedings, and that can include gut-wrenching testimony from people who witnessed disturbing and distressing events.
At Chauvin’s trial, prosecuting attorneys frequently paused when witnesses were overcome, inviting them to take as much time as they needed. Chauvin’s attorney often skipped cross-examining witnesses, including a 9-year-old girl.
How much trauma witnesses have to relive on the stand largely depends on the attorneys’ strategies and what evidence the judge allows, said University of Iowa law professor Emily Hughes, a criminal law expert. Some may be unavoidable.
“In order for the prosecution to meet their burden and put in the evidence they need, they sometimes do have to put in really hard, traumatic facts,” Hughes said. “At the same time, sometimes the two sides are able to stipulate to certain information to protect witnesses or jurors or people from having to relive an experience like that again. When and how that happens is very much a case-by-case, witness-by-witness or fact-by-fact situation.”
Prosecutors have played bystander video of Chauvin kneeling on Floyd’s neck as he lay face-down in handcuffs. They have argued that he persisted even after several onlookers tried to intervene and yelled at him to stop. Chauvin’s defense has argued that the videos show an angry crowd that made it harder to subdue Floyd.
DO WITNESSES WHO ARE MINORS HAVE ANY ADDITIONAL PROTECTIONS?
Yes. A judge this week sided with prosecutors in blocking live television coverage of the testimony of four witnesses who were minors when they witnessed Floyd’s arrest. He allowed audio of their testimony.
The judge ruled that it would be up to the news media to determine whether to identify those witnesses by their names or to keep them confidential. One child witness appeared with an adult support person as allowed under Minnesota law.
