Last month, Proskauer filed an amicus brief on behalf of Sanctuary for Families — a leading non-profit organization advocating for victims of domestic violence and sex trafficking —specifically to advocate for allowing criminal prosecutions based on lawfully recorded telephone calls that abusers in pretrial detention use to coerce victims not to testify.
According to some reports, up to 80% of victims of domestic abuse and sex trafficking recant their testimony of the abuse and refuse to cooperate with police. Decades of social-science research, along with recent academic studies and reputable reporting, show that many domestic violence and sex trafficking victims recant because they are suffering from acute psychological trauma akin to Stockholm Syndrome: by combining psychological manipulation with incidents of physical violence, abusers achieve “coercive control” of their victims and successfully instruct them not to testify. Abusers in pretrial detention are particularly incentivized to coerce their victims not to testify because, often, the victim is the only available witness to the crime.
These concerns were presented by our amicus brief to the New York Court of Appeals in People v. Diaz, in which the defendant was convicted of robbery and burglary in part based on inculpatory statements he made during recorded telephone calls in pretrial detention. The defendant sought to exclude the incriminating statements he made, despite receiving multiple notices that his calls would be recorded, on the grounds that using those recordings for any purpose other than maintaining order at the prison was improper.
Proskauer’s brief highlighted the devastating effects that a reversal would have upon victims of domestic violence. Given how successful abusers are in coercing victims not to testify (and thereby committing criminal witness tampering and obstructing justice), a ruling that prohibits lawful recordings from being used for purposes other than prison security not only would lack support in the law, but would immunize pretrial detainees who seek to coerce victims not to testify. At oral argument this month, the Court of Appeals questioned counsel on the specific issues raised in Proskauer’s brief.
I was proud to lead the Proskauer team, which included associates Jim Anderson and Jonathan Traub.
To read our amicus brief, please click here.