The first days of testimony at the trial of a former Minneapolis police officer charged in George Floyd’s death were dominated by witnesses to his arrest and countless videos that forced them to relive the trauma of it all over again.
man who shouted “You can’t win!” at Floyd as the Black man struggled
with police, bowed his head and sobbed on the stand. The teenager who
shot widely seen bystander video cried as she talked about her guilt over not being able to help Floyd. A firefighter trained as an EMT broke down as she described her frustration
because police prevented her from acting to save Floyd’s life. The
young cashier who reported that Floyd used a $20 counterfeit bill to buy
cigarettes — prompting a call to police — recalled his guilt as he
watched Floyd struggling to breathe.
Attorneys on both sides at the trial of former Officer Derek Chauvin
face a delicate balance in questioning witnesses who have experienced
such pain while trying to advance their cases. The testimony raises
questions about how witnesses who have suffered trauma are treated when
they participate in the criminal justice system.
York Law School criminal law professor Kirk Burkhalter, a former
detective who leads a program on police reform, said the bystander
testimony has been a powerful reminder of how police misconduct is a
betrayal to the entire community.
people have been walking around with this pain for a year, unbeknownst
to us,” he said. “They were victims of a crime. We just cannot forget
that. They were trying to do their civic duty and they were prevented
from interceding in something that was just completely horrible.”
Chauvin’s defense has even tried to paint some of the witnesses as part of a dangerous crowd, adding more pain, he said.
ARE THESE WITNESSES CONSIDERED CRIME VICTIMS?
Probably not. The law generally does not recognize the emotional toll on witnesses as a harm, Burkhalter said.
Minnesota law, a victim is anyone who incurs “loss or harm as a result
of a crime, including a good faith effort to prevent a crime.” Some of
the witnesses testified that they sought to stop Chauvin from using
force against Floyd, and even called the police to report his actions.
They also described the emotional harm they have endured.
legal distinction between a witness and a victim is important. Victims
have rights in criminal cases, including the right to be notified and
object to any proposed plea agreements, and to give victim impact
statements at sentencing hearings.
DO WITNESSES QUALIFY FOR GOVERNMENT AID TO DEAL WITH THEIR TRAUMA?
Witnesses to crimes may apply for mental health counseling and other
benefits from the Minnesota Crime Victims Reparations Board.
depends on individual circumstances and is decided on a case-by-case
basis, said Doug Neville, a spokesman for the Minnesota Department of
Public Safety. If approved, they could be eligible for up to $7,500 in
counseling and healing services.
WHAT LEGAL PROTECTIONS DO WITNESSES HAVE?
of the laws and professional guidelines governing the treatment of
witnesses are designed to protect their physical safety against
retaliation and limit the inconvenience of having to testify.
District Attorneys Association guidelines note that one of the greatest
needs for witnesses is the assurance of safety against threats,
harassment or intimidation. In Minnesota, a prosecutor can take steps to
protect witnesses from having to reveal their home or employment
addresses, telephone numbers and dates of birth.
witnesses are also compensated for their time and the expense of
testifying, including $20 per day in Minnesota plus mileage and meals.
They are to be notified when to show up, with any delays minimized. And
employers in Minnesota cannot retaliate against witnesses who have to
take time off to testify.
WHAT ABOUT THEIR EMOTIONAL WELL-BEING?
have a duty to present the truth in court proceedings, and that can
include gut-wrenching testimony from people who witnessed disturbing and
Chauvin’s trial, prosecuting attorneys frequently paused when witnesses
were overcome, inviting them to take as much time as they needed.
Chauvin’s attorney often skipped cross-examining witnesses, including a
much trauma witnesses have to relive on the stand largely depends on
the attorneys’ strategies and what evidence the judge allows, said
University of Iowa law professor Emily Hughes, a criminal law expert.
Some may be unavoidable.
order for the prosecution to meet their burden and put in the evidence
they need, they sometimes do have to put in really hard, traumatic
facts,” Hughes said. “At the same time, sometimes the two sides are able
to stipulate to certain information to protect witnesses or jurors or
people from having to relive an experience like that again. When and how
that happens is very much a case-by-case, witness-by-witness or
have played bystander video of Chauvin kneeling on Floyd’s neck as he
lay face-down in handcuffs. They have argued that he persisted even
after several onlookers tried to intervene and yelled at him to stop.
Chauvin’s defense has argued that the videos show an angry crowd that
made it harder to subdue Floyd.
DO WITNESSES WHO ARE MINORS HAVE ANY ADDITIONAL PROTECTIONS?
A judge this week sided with prosecutors in blocking live television
coverage of the testimony of four witnesses who were minors when they
witnessed Floyd’s arrest. He allowed audio of their testimony.
judge ruled that it would be up to the news media to determine whether
to identify those witnesses by their names or to keep them confidential.
One child witness appeared with an adult support person as allowed
under Minnesota law.