November 16, 2007 12:47 PM PST

Police Blotter: Can a cell phone camera intimidate a witness?

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(continued from previous page)

Excerpts from the court's opinion: It is not disputed that the complainant was a witness against the defendant in a criminal trial and that the defendant made a physical gesture consistent with taking a photograph of the witness.

The defendant maintains, however, that there is no evidence that he used, in his words, "intimidation, force, or threats of force," arguing that he did not show any hostility toward the witness prior to the action taken; that the witness's purported concern did not prompt him to take any additional precautions as an undercover officer; and that a reasonable police officer in the complainant's position would not have been intimidated.

An action does not need to be overtly threatening to fall within the meaning of "intimidation." Although the defendant did not expressly threaten the officer's person, his action threatened the undercover officer's continuing safety. That the defendant did not exhibit hostility toward the officer prior to his actions is inconsequential, as a single act by a defendant is sufficient to satisfy the intimidation statute.

Further, it is irrelevant whether a victim takes precautions in response to the defendant's behavior, as "the statute punishes anyone who 'willfully endeavors' to intimidate a witness; it does not require that the intimidation be successful."

The defendant also maintains that even if his actions did rise to the level of intimidation, the prosecutor did not prove that they were intended to influence the complainant's testimony. Assuming arguendo that in this case, an obvious connection between the defendant's actions and his intent is lacking, one can make an inference based upon "the place, time, and circumstances (of the incident)."

Although the defendant did not make any statement indicating that his action was taken to influence the officer's testimony, he did make a threatening statement to the complainant suggesting that he had already sent the photographs to his home computer. The logical import of the statement is that the photographs were irretrievable and could be exploited at a later time. Considering the "time" and "place" of both his action and statement, the jury could readily infer that the defendant intended to influence the complainant's impending testimony.

The defendant next claims that there is no evidence that any photographs were ever taken, affecting the "circumstances" aspect of the inference. It is irrelevant whether any photographs were taken, as the police officer was made to believe that the defendant was taking pictures of him and could disseminate his likeness, an act intended to intimidate.

In sum, the jury had adequate evidence from which to infer that the defendant intended to influence the officer's testimony.

Excerpts from Massachusetts law: (1) Whoever, directly or indirectly, willfully
(a) threatens, or attempts or causes physical injury, emotional injury, economic injury, or property damage to;
(b) conveys a gift, offer, or promise of anything of value to; or
(c) misleads, intimidates or harasses another person who is:
a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial, or other criminal proceeding of any type...shall be punished by imprisonment for not more than 2 1/2 years in a jail or house of correction or not more than 10 years in a state prison, or by a fine of not less than $1,000 nor more than $5,000.

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16 comments

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Can-a-cell-phone-camera-intimidate-a-witness?
What a bunch of BS, more of our civil rights going down the tubes. What happen to free speech, freedom of expression?!
Posted by qinn404 (1 comment )
Reply Link Flag
freedom...
to take a picture of an undercover so he can be whacked?

Perhaps your the one who needs to be whacked.
Posted by volterwd (466 comments )
Link Flag
Simple
Fake drugs = intent to emulate drugs

Fake picture = intent to emulate itimidation
Posted by krosavcheg (262 comments )
Reply Link Flag
faking patriotism
modern day law enforcement wearing american flags while spending their every waking moment violating constitutional rights with the consent of congress....another version of the fox guarding the henhouse..
Posted by nedmorlef (49 comments )
Reply Link Flag
Constitution?
Exactly what constitutional right is being violated here? Please
point it out. Unless you're just pontificating...
Posted by BDEEKMAN (34 comments )
Link Flag
From a photo journalists perspective...
...this case is irrelevant. I was a television news photographer for a year, and I was given very simple instructions from my news director: don't shoot undercover officers. The reasons were two fold. 1.) to protect the officers identities who risk their lives daily, and 2.) to maintain good relations with the PD.

Reading the story, I found the judges ruling to be more than prudent. There is no freedom of the press issue here at all.
Posted by guitarlesson--2008 (5 comments )
Reply Link Flag
Reply
Well he didn't actually take any photograph, and the business practices your station uses to maintain "good relations" with the PD is irrelevant as to the reasonableness or constitutionality of this man's punishment. The individual was apparently being prosecuted on bogus charges for all we know. Of course he sounds like a dumb jerk and it was a dumb idea to try that. In any case I have a hard time believing he could in any intimidate the police any more than they could him.

Unfortunately for TV networks, most people now know you guys in the corporate TV news media tend to always put "maintaining good relations" with the police/government ahead of informing your audience, the bill of rights, or the truth itself.
Posted by jdbwar07 (150 comments )
Link Flag
In the hallway
If a person is in what could be determined a "public space" such
as a hallway, how could this hold water? Hallways are fair game.
If there was an undercover he/she should NOT have been
exposed publicly. They can in most cases use a side entrance to
shield their face from public view.

It would be, in my opinion, the same as complaining about
somebody taking your picture in public space and saying it is a
threat to you. Sorry, if you don't want your picture taken cover
up your face or do something to disguise yourself. Wear a
Groucho Marx pair of glasses, put on fake facial markings (scars,
warts) so you are not spotted the same as "normal".

If anything LEO's should not be intimidated, they know how to
hold their own.
Posted by Travis Ernst (170 comments )
Reply Link Flag
Relationship matters
You're not considering the relationship between the defendant
and the officer. The defendant intimidated the officer
purposefully in hopes of preventing him from testifying. The
officer's location is irrelevant. In fact, the defendant's location is
irrelevant. Intent is clear here. No mind reading required.

Consider two close friends joking around and one puts his finger
to his head and pretends to shoot himself jokingly. The exact
same gesture made to a total stranger could be intimidating,
depending on the intent.

It's not so cut and dry... the reason the judicial system exists is
to draw the lines the laws are intended to draw.
Posted by BDEEKMAN (34 comments )
Link Flag
For bleeding hearts sake
Ok, the fact was not that he took or pretended to take a picture of the undercovers, it was the REASON he did this. He wasn't a journalist taking pictures of the scene, he was deliberately taking pictures of an undercover cop with the intent to distribute that picture to all his drug friends. He knew the cop would take it that way, that is why he did it. The judge was correct, the defendant did this to try and get the undercovers to not testify in the trial, which is intimidation.

All you "our rights are being stripped away" need to hush. Your rights are still there, however our rights are not ever-extending. For instance, your right to freedom of speech does not allow you to threaten anyone with bodily harm. You can tell a someone "I hate you!" but the moment you utter "I'm going to kill you!" it becomes verbal battery with intent. Seriously, the people who cry out that we are losing our rights usually are the people who do not understand our rights at all.
Posted by tanis143 (122 comments )
Reply Link Flag
our rights are being stripped away
So, now we can (well, the prosecutor and the judge, that's all that matters) can look into someone's mind and determine the REASON why they did something.

I always presumed "thought crime" was the stuff of fiction.

Guess not.
Posted by Too Old For IT (351 comments )
Link Flag
Thoughts do matter
yes, thought matters in criminal matters and always has. Intent is one of the principal requirements of criminal action. And it's up to the jury (or in this case, the judge) to determine intent based on the actions of the defendants.
Posted by therealbean (64 comments )
Reply Link Flag
Wrong, but dangerous precedent.
What the defendant did was, well stupid. He should of kept his mouth shut. Especially if he was going to get dismissed on the drug charges. Which is why it sounds suspicous, they couldn't make one charge stick so they trumped up another? Are court trials not a matter of public record? If undercover informants are truely worried about their identity being discovered are they not allowed to be present testimony, without revealing their true appearance? Next time you are in a court house or court room could you get convicted of intimidation just for possesing a cell-phone camera? That is where you will find out if our rights are again being threatened.
Posted by chash360 (394 comments )
Reply Link Flag
 

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