No Honor Among Thieves

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As a criminal defense attorney, cross-examining a witness in trial is a major portion of my job. The ability for me to do so is rooted in the Confrontation Clause of the Sixth Amendment of the U.S. Constitution. This means that a criminal defendant is entitled to test the credibility of a witness, and must receive a full and fair opportunity to probe and expose the witness’ infirmities through cross-examination.

One of the more interesting witnesses to cross-examine is a co-defendant who has agreed to testify in exchange for a deal from the prosecutor (government). The informer. The snitch. The rat.

This happens ALL the time. If multiple people are charged for the same crime, it is almost a certainty that one will attempt to cut a deal with the government in exchange for testimony against the others.

When a cooperating witness is cross-examined, it’s important that the jury understands there is a “baked in” reason for that witness to fabricate details.

Why would a prosecutor offer a co-defendant a plea deal in exchange for testimony? It could be that the prosecutor’s case is not strong and by offering one defendant a deal in exchange for testimony against another, they have a better opportunity to secure convictions. It could be that one co-defendant is less culpable than the other. Perhaps they are very interested in securing a conviction against one defendant and are trying to make a strong case stronger. There are many reasons why this occurs.

An effective cross-exam involves questioning credibility. When a cooperating witness is cross-examined, it’s important that the jury understands there is a “baked in” reason for that witness to fabricate details. Essentially, effective cross-examination stresses the idea that the informant’s plea deal may disappear if they testify poorly, or fail to provide the government with the information needed to secure the conviction of the other defendant.

A reduction of charges or an agreement that significantly reduces penalty is always going to be material information for the jury. For example, I sometimes ask a snitch witness if they love their mother. The answer is always “yes.” Next, I walk them through the amount of prison time they faced if they didn’t testify. I finish with a question involving the idea that they would do whatever it took to see their mother again. Their answer doesn’t matter. “Yes” infers that they may be willing to say anything in order to go home. “No” makes them come across as a liar.

The defense can also explore whether or not the government has paid the informant for their testimony, or if they are in protective custody. The protective custody issue can be a tightrope act; on redirect examination, the government could explain why this witness is in protective custody, which might not be great for the defendant. The fact that a witness is paid for their testimony or cooperation by the government in addition to receiving a significantly reduced sentence always highlights the credibility issues of a cooperating witness.

An informant, cooperating witness or snitch who testifies for the government at trial is effective. It works – and that is why the government does it. It’s challenging to defend against and it increases the likelihood of a conviction. However, a cooperating witness, no matter how well they testify, provides a defense attorney with a significant arsenal that can be used to attack their credibility.

Generally speaking, it’s a bad idea to commit a crime. It’s a worse idea to commit a crime with someone else. Clichés are used for a reason and it is a fact: there is no honor among thieves.

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