* Prosecution paths around "Confrontation Clause" limited
* Exceptions to the hearsay rule could apply in the case
* Prosecutors could go ahead without maid's testimony
By Joseph Ax
NEW YORK, May 26 (Reuters) - The possibility of a payoff arises frequently in cases such as Dominique Strauss-Kahn's sexual-assault charge, where the defendant has power and wealth and the accuser has neither.
It came up again after The New York Post reported on Tuesday that friends of the indicted former International Monetary Fund chief tried to pay off the alleged victim's family in exchange for recanting her claims that Strauss-Kahn tried to rape her and forced her to perform oral sex on him: What would happen to the prosecution's case if the Sofitel hotel maid decided to retract her allegations?
On Wednesday Reuters reported that Strauss-Kahn's lawyers denied the report, and there is no evidence that a payoff attempt occurred. But the conjecture alone raises complex legal and ethical issues.
Prosecutors confronted with a suddenly recalcitrant witness must contend with the requirements of the Confrontation Clause of the Sixth Amendment, which guarantees a defendant the right "to be confronted with the witnesses against him."
Their paths around this mandate are limited and not particularly appealing, analysts say.
First they could subpoena the witness, requiring her to testify and hoping she would decide to stick with her original story. But such a move could backfire if the witness backed the defendant's version of events.
If the witness delivered a different account of events on the stand, prosecutors could impeach her credibility by pointing out that she told a different version to police or to the grand jury. The threat of perjury is also available if the witness previously testified under oath -- as she did last week in front of the grand jury.
Normally the hearsay rule prohibits prosecutors from introducing previous out-of-court statements, experts say. But there are exceptions, several of which could be applicable in the Strauss-Kahn case.
EXCITED UTTERANCES
According to authorities, the alleged victim immediately told hotel staff and police officers that she had been assaulted. These statements could be admissible under the "excited utterance" exception to the hearsay rule, which allows unsworn statements made spontaneously following a shocking event to be submitted as evidence of what occurred.
"Most likely, there were a whole bunch of excited utterances -- to hotel staff and to the first police officers that arrived," said Daniel Bibb, a former Manhattan prosecutor. "This kind of evidence is common."
Another hearsay exception, known as "immediate outcry," and available only in sex-crime prosecutions, would permit prosecutors to submit certain out-of-court statements the alleged victim made following the incident, Bibb said. This exception is often used to bolster the credibility of alleged victims who do not report the crime to authorities right away.
Prosecutors could also proceed without her testimony altogether, relying on the physical evidence collected at the scene, for instance. Going ahead even without a victim's testimony is done most frequently in domestic violence cases, which are often hamstrung by witnesses who eventually decline to testify to protect their partners. It's generally known as "evidence-based prosecution."
But this would be an unlikely option for Strauss-Kahn's prosecutors. "You don't see that happening in many sex crimes cases," said Anne Milgram, the former attorney general of New Jersey, who doubts a case could be made against Strauss-Kahn without the alleged victim. "The prosecution needs the witness in this case."
In many domestic violence cases, lawyers say, there is additional evidence of a crime: bruises, for example, or neighbors who heard fighting.
PROVING A BRIBE
If, however, the prosecution could prove that the alleged victim's sudden change of heart was due to a bribe or threat from Strauss-Kahn or someone associated with him, their options expand. In such a case, the woman's sworn testimony to the grand jury and her statements to police could be submitted as evidence, even though Strauss-Kahn's lawyers had no chance to cross-examine her, according to David Jaros, a former Brooklyn public defender.
As long as the defendant has "dirtied his hands" by witness tampering, a judge could decide he has waived his Sixth Amendment right to confront his accuser, Jaros said.
But proving such a charge against the defendant himself can be difficult. "They would have to show that the defendant was involved in tampering with the witness before they could access any kind of sworn statement that she had made," Jaros said.
On the other hand, a bribe from a third party, not traceable to the defendant, would probably not be enough to erase his right to confront the witness. In such a case, prosecutors could only introduce grand jury testimony to impeach the alleged victim if she changed her account. They could not use it as evidence of what actually happened.
Any bribe paid at Strauss-Kahn's behest would be illegal and subject him to additional charges. In theory, prosecutors could go after anyone who tried to bribe the alleged victim's family although arresting a foreign national -- whether in France or Africa, where the maid's family lives -- might prove difficult.
"If people offer bribes to folks in Africa for the purpose of interfering with the testimony of a witness in New York, that conduct would be cognizable by the New York courts, and they might be criminally liable for it," said John Moscow of Baker Hostetler, a criminal defense lawyer in New York.
CIVIL SUIT
The more likely way in which money might play a role in ending the case would be through a civil lawsuit filed by the alleged victim. In general, legal experts say, crime victims are better off waiting for the criminal case to be resolved before proceeding with a civil complaint, for a variety of reasons. But they occasionally proceed simultaneously.
On Wednesday night, Reuters reported that the maid's lawyer, Jeffrey Shapiro, has added two attorneys to her legal team, in part to decide "whether there is a civil case going forward," he said. He noted that any civil suit would need to be filed within one year of the incident.
When basketball star Kobe Bryant was charged with rape, his alleged victim filed a civil lawsuit shortly before the criminal case was dismissed, reportedly because she decided she didn't want to testify. The case eventually settled for an undisclosed sum.
In another celebrity case, pop singer Michael Jackson paid millions in 1994 to settle a civil lawsuit brought by a boy who accused him of sexual assault, even as two grand juries were convening to consider charges. No charges were ever filed, in part because the accusing witness said he would not testify.
If a civil suit has been filed, lawyers can work out a settlement at any time, though they must comply with ethics rules mandating that the criminal and civil cases remain separate.
The suggestion that a witness's testimony in a criminal trial would be affected by a civil settlement could draw obstruction of justice charges and disbarment. (Reporting by Joseph Ax; Editing by Howard Goller, Jesse Wegman and Xavier Briand)
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