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New Pennsylvania testimony rules are called "monumental"

By Nancy Phillips and Craig R. McCoy
Inquirer Staff Writers

In a move that will spare thousands of crime victims from having to testify at initial court hearings, the Pennsylvania Supreme Court has ordered judges to accept the testimony of police officers, rather than victims, against defendants accused of property crimes.

“This is monumental,” said Supreme Court Justice Seamus McCaffery, who joined with Chief Justice Ronald D. Castille in pushing for the policy. “This will make things more just for the victims and the accused.”

Each year in Philadelphia, as many as 5,000 victims of car thefts, burglaries, frauds, and other felony property crimes will be spared initial court appearances. Instead, police will testify that the items in question were reported stolen.

The change is designed to end the practice by which victims must go to court merely to testify that they owned property and gave no one permission to take it. Given the delays that plague the Philadelphia courts, this has forced victims to show up repeatedly – and led many to simply give up.

The change would affect preliminary hearings in Municipal Court, at which judges decide whether there is enough evidence to merit a full trial in Common Pleas Court. The victims would still have to appear at those trials.

The change, enacted by a unanimous vote of the seven-member high court Thursday and announced Friday, will begin in 30 days.

Though the rule will take effect statewide, its impact will be most dramatic in Philadelphia. Judges elsewhere in Pennsylvania routinely allow police to stand in for victims at initial hearings, which are typically in District Court.

District Attorney Seth Williams, who joined McCaffery and top Philadelphia judges at an afternoon news conference, said the new policy would reduce witness attrition, saving cases from collapse.

“They come as willing participants and leave as frustrated, bitter people,” Williams said. “There’s no reason for them to have to come to court again and again.”

McCaffery and Williams also helped unveil an effort to combat the entrenched problem of witness intimidation.

They made public a “bench book” for judges, giving them practical and legal advice on how to spot and quell courtroom threats against witnesses.

“These two – the new rules and the bench book – are monumental,” Williams said. “They’re monumental because we are going to hold more defendants accountable for their behavior.”

McCaffery called the changes “a direct result” of a series of articles in The Inquirer on the Philadelphia court system, “Justice: Delayed, Dismissed, Denied,” published in December 2009.

In the series and subsequent articles, the paper reported that witness fatigue and intimidation, including threats, violence, and murder, contributed to a court system with one of the nation’s lowest conviction rates.

Defense lawyers were skeptical about the move to limit witness testimony. Some said it would undermine defendants’ right to confront their accusers. Others predicted it might only delay the day of reckoning for cases.

Bradley Bridge, a senior lawyer with the Defender Association, which represents indigent suspects, said the move would strip Municipal Court judges of an important role – vetting cases to make sure victims intend to stick by their accusations in court and under oath.

“If they’re not going to show up at all, then it’s better to get rid of cases early,” he said. “I think this will do no more than drag cases out at the Common Pleas level.”

But McCaffery, a former top judge in Municipal Court, said the change would end “an insidious trend” in Philadelphia, in which lower-court hearings have become far too elaborate.

This, he said, has forced victims to face the prospect of hearings that are often postponed numerous times. Castille, McCaffery, prosecutors, and even some defense lawyers say such delays are often spurious, a defense tactic aimed at wearing down witnesses in the hope that they will not show up for the next hearing.

“This was the type of creative trial advocacy that a lot of members of the defense bar practiced to get the case continued,” McCaffery said.

The new rule would end that practice in the early stages of a case by allowing hearings to go forward in a victim’s absence. The change should result in fewer postponements, less police overtime, and swifter dispositions of criminal cases, he said.

As for the new judges’ manual on threats against witnesses, Walter M. Phillips Jr., chairman of the state agency that commissioned the report, said intimidation had developed into a “high art form” carried out in ways both brazen and subtle.

Phillips, head of the Pennsylvania Commission on Crime and Delinquency, said the bench book would give judges tips on spotting threatening behavior in their courtrooms. The book is to be distributed to judges statewide.

Among its suggestions are banning electronic devices such as cell phones, cameras, and PDAs that can be used to transmit information about witnesses; training courtroom staff to be attentive to intimidating gestures; and separating the victims’ family and friends from those of the defendants in the courtroom.

Common Pleas Court Judge Renee Cardwell Hughes, who helped write the manual, called threats against witnesses “an assault on justice” in Philadelphia and beyond.

“It is serious. It happens every day,” Hughes said. “It is simply an effort to stop the truth, and it cannot be tolerated.”