Witnesses Not Safe With Livestreamed Trials, Philly DA Says

By Matt Fair
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Law360 (September 14, 2020, 9:00 PM EDT) -- Philadelphia's district attorney told the Pennsylvania Supreme Court on Monday that the city's practice of livestreaming criminal trials, adopted as cases restarted this month after the pandemic largely shut down court operations in March, threatened the privacy of crime victims and raised the specter of rampant witness intimidation.

District Attorney Larry Krasner said that Philadelphia County's newly adopted system of livestreaming criminal trial proceedings over YouTube made it possible for any viewer to surreptitiously record witness testimony for nefarious purposes, with little hope of accountability.

As a result, he said that witnesses could face retribution for cooperating with the government, and that victims could be harassed by those who repost their testimony or graphic trial photos to the internet.

"The criminal legal system is heavily reliant on the cooperation of victims, witnesses, and jurors to seek justice and to deter the commission of crimes," Krasner said. "We must be able to offer reasonable assurances that victims will not be unnecessarily re-traumatized, and that those who cooperate in prosecutions will be safe."

The Philadelphia County Court of Common Pleas started taking criminal cases to trial again earlier this month after jury operations were shut down in mid-March as the coronavirus pandemic took hold in the region.

As part of the plan to begin criminal jury proceedings again, the court announced it was launching a YouTube channel where, at a judge's discretion, trials could be streamed for any member of the public to view.

While the DA's office objected to streaming the first case to go back to trial — Commonwealth v. Khyzee Brown — the judge ultimately agreed to allow the broadcast.

In its petition to the Supreme Court on Monday, the DA's office said that witness intimidation was a rampant and well documented problem in Philadelphia, and that allowing cases to be widely broadcast over YouTube created a real threat to people who take the stand in support of the prosecution.

The widely available broadcasting of criminal trials comes in contrast to Philadelphia County's policy, implemented in recent years in a bid to help stop witness intimidation, requiring people attending proceedings at the Juanita Kidd Stout Center for Criminal Justice to lock away their cell phones before proceeding through security.

In addition to the prospect of witness intimidation, the prosecutors said that broadcasting trials over YouTube made it virtually impossible to sequester witnesses.

"A merely self-conscious witness might yield to temptation to compare her public performance with that of the other witnesses," the DA's office said. "A more self-interested witness could intentionally conform her testimony based on that of other witnesses to achieve her desired outcome."

Prosecutors added that there were easier ways to ensure public access to judicial proceedings without the threats associated with broadcasting trials over YouTube.

They noted that overflow rooms in the courthouse could be set up for members of the public to view trial proceedings, given that crowd capacity in individual courthouse has been scaled back in line with public health mandates.

"The form of public access contemplated by the federal and state constitutions — in-court attendance where spectators can both observe the proceedings and be observed by witnesses and court personnel — remains available," the DA's office said.

A court spokesman declined to comment.

The DA's office is represented by Lawrence Krasner, Matthew Davis, Lawrence Goode, Paul George, Nancy Winkelman and Carolyn Engel Temin.

Counsel information for the court was not immediately available.

The case is In re: First Judicial District Livestream Policy, case number 68 EM 2020, before the Supreme Court of Pennsylvania.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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