In the past few columns, I’ve talked about the reasons why white-collar trials are hard in federal court. So few of them go to trial and, of those that go to trial, so few have a win for the defense. One reason is how people accused of crimes are treated as witnesses and Rule 608(b). Another reason is that, especially in white-collar cases it seems, folks who are later accused of crimes are chatty with agents, and that seemingly never fails to break bad.

Another reason is that lots of folks cooperate with the government. When many people realize that there’s going to be someone going to prison (see, e.g., the statistics on plea rates), they reason that they’d rather someone else go to prison instead of them.

Snitches are tricky. Often you don’t know what they’ve said before to the government until late in the game. Their statements are Jencks — so a defense lawyer is supposed to get them, but often federal judges only require that they’re turned over very close to trial.

Snitches are also crafty witnesses….

This is especially when the snitch has a very good lawyer — and the money to pay for that lawyer’s time — who works with her client on how to testify effectively. The government and the snitch’s lawyer will have access to all of the evidence that the lawyer for the person on trial does. They’ll look for the avenues of cross that will be pursued, and they’ll prepare for them.

The snitch has a strong reason to be a very persuasive witness — he’s trying to get his time down.

And of course, a good defense lawyer will want to point out to the jury that the snitch has a reason to shade things.

The government has a response to that — they include in just about every cooperation agreement that the cooperating witness has to tell the truth in order to receive any benefit under the agreement.

This is supposed to highlight for the jury that the snitch is really motivated to tell the truth. Of course, as just about any snitch cross points out, the folks who decide whether the snitch is telling the truth share a credit union with Eric Holder.

There are, as you might expect, rules about snitches and cooperation agreements, and when the government can use a cooperation agreement to bolster the snitch’s testimony. Namely, a prosecutor cannot try to bolster the testimony of a snitch by saying that he’s testifying truthfully.

Last week, Judge Rakoff wrote an opinion for the Second Circuit while sitting by designation dealing with cooperation agreements and bolstering. It’s instructive of the ground rules. (and, as an aside, what a week for Judge Rakoff and the Second Circuit!).

In United States v. Certified Environmental Services (h/t White Collar Crime Prof Blog), in the opening statement of the trial the government introduced the idea of snitch testimony to the jury saying that there were going to be cooperating witnesses. As Judge Rakoff explained, the prosecutor told the jury they would hear from witnesses who

engaged in absolutely deplorable behavior. I am not going to shine it up at all. They were involved in a conspiracy. Their conduct was despicable. They are here under plea agreements. They pled guilty to felonies.” But the prosecutor then went further, telling the jury, “Their obligation is to tell the truth.”

Defense counsel objected — that’s improper bolstering of the testimony. A prosecutor can’t tell the jury that a witness is going to tell the truth; it’s bolstering the credibility of the witness. The district court sustained the objection.

The prosecutor, undeterred, continued:

We will introduce their plea agreements, and you will see through their plea agreements what their obligations are, what benefits they get, and what happens if they don’t tell the truth

Defense counsel again objected. Again the objection was sustained.

The prosecutor, who one suspects may not know what “sustained” means, went on, telling the jury that:

You are going to hear that the witnesses will be immuned [sic]…, and they will tell you under what conditions they were given immunity.

The district court told the prosecutor that if he didn’t move along, the court would end his opening statement at that point. The prosecutor, finally, moved along.

Then, during the direct examination of these witnesses, before the defense lawyer has raised any issue with whether they were giving, in essence, bought testimony, the prosecutor introduced the cooperation agreements that had the standard language that there’s only a benefit if the person tells the truth.

Ultimately, the convictions were vacated and the case remanded because of these errors, and others, in the trial.

But the problem remains — cooperating witnesses testify in cases with complex questions about the mental state of the person who is accused of a crime. That testimony is dangerous, and these “truth-telling clauses” make the defense job of attacking them harder.

Earlier: Why Johnny Can’t Talk: Federal Rule of Evidence 608(b) and the Difficulty of Trial
The Perils of A Criminal Trial Redux; or, DOJ Belatedly Notices It Has Recording Equipment


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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