Monday, September 9, 2013

State Attorney's Message: Confidential Witness Addresses

By Mark A. Ober

The prosecution of a criminal case involves respecting the rights of a defendant while still protecting the victims of crimes. Sometimes, the challenge of finding this balance arises during an otherwise straightforward part of the criminal process, such as discovery.

Under Fla. R. Crim. P. 3.220(1)(a), if the defendant elects to participate in the discovery process, the state is required to provide the defendant with “a list of names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged.” This list would normally include the victim of the crime, as well as the victim’s address, but in some cases the victim of the crime is in fear of the defendant.

In a domestic violence case, the victim may apply to participate in the Address Confidentiality Program administered by the Office of the Attorney General. Fla. Stat. §§ 741.401-741.409. If the victim is accepted into the program, the victim will designate the attorney general as his or her agent for the purposes of service of process and receipt of mail. The victim’s address would be exempt from disclosure through public records requests and from disclosure through discovery. Fla. Stat. §§ 741.405 & 741.465.

Even in a case that is not domestic violence-related, the court may enter an order preventing or restricting disclosure of a victim’s address if certain conditions are met. Fla. R. Crim. P. 3.220(e).  The pertinent criminal rule provides that this may occur if the court finds “there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.” Id.

This issue was addressed in Holmes v. State, 557 So. 2d 933 (Fla. 5th DCA 1990). In that case, the court recognized that withholding the address and employment information of the victim implicated important constitutional rights of the accused. Holmes v. State, 557 So. 2d 933, 935 (Fla. 5th DCA 1990). The court went on to acknowledge that the Florida Supreme Court has recognized a narrow personal safety exception to the disclosure requirement. See State v. Hassberger, 350 So. 2d 1 (Fla. 1977). In order to withhold this information: “First, an actual, not implied, threat to the witness or his family must be shown. Second, the government must disclose to the judge in camera the information sought to be withheld from the accused. The judge must determine whether the facts must be disclosed in order not to deny effective cross-examination to the defendant. Finally, the accused must be given an opportunity to show any special need for the requested information.” Holmes, 557 So. 2d at 936. 

As state attorney, I have a duty to protect those who have been the victim of a crime while ensuring that the criminal justice process is able to function in a just manner. My office will use the legal protections available to us to accomplish this goal.