Here's How:
To Handle the Snitch at Trial
By: Attorney Jeffrey W. Jensen
Why is This Important?
Recently I sat in a debriefing with a client of my in a federal case and the United States Attorney told my client, who was reluctant to cooperate, "Don't worry, everyone snitches here." That is an overstatement- but not by much.
It is a fact of life in the criminal courtroom that, when defending any serious criminal charge, the defense lawyer is very likely to have to contend with a cooperating witness for the government. A "cooperating witness" is a witness who is himself facing criminal charges and who expects consideration in his own criminal case in exchange for his testimony. Especially in federal court, the government always makes it well worth a cooperating witness's while to "debrief" with government agents and, if necessary, to testify at trial.
Most lawyers know that the prosecutor is required to disclose during the discovery process any promises, inducements, or rewards that have been given to the witness. For this reason, the prosecutors almost always tell the snitch that no up-front promises will be made- the witness must cooperate to the extent possible, and only then will the prosecutor evaluate the value of the services and reward the witness accordingly.
The defense lawyer on cross-examination, of course, must fully develop the witness's expectation of leniency from the government. Ask the witness what he is charged with and what he expects from the government in exchange for his testimony. You will be surprised at what they expect- and so will the jury. It will always be far more generous than what the prosecutor will actually give.
If you, as the defense lawyer, merely rely on the prosecutor to provide you with the material for cross-examination, though, you are missing major opportunities for impeachment and your failure in this regard may even amount to ineffective assistance of counsel.
Emphasize That This is a Paid Witness
Any juror would be shocked if it were revealed that the prosecutor paid a witness $10,000 to come to court to testify that the defendant committed the crime. Attempting to influence a witness's testimony with promises or with threats is a crime. This is one reason that government "proffer letters" always emphasize in several different ways that the witness is required to render "truthful testimony." But encouraging a criminal to testify truthfully is about like making him promise not to commit any more crimes if he is released from jail.
Why should it be any less shocking, then, that the prosecutor pays the witness with his freedom? How much more valuable than money is a year or two of liberty?
Defense lawyers frequently miss the opportunity to portray the cooperating witness as what he is: a paid witness for the prosecution. Worse, he is a paid witnesses who is paid more depending on how damning the testimony is for the defendant. In your cross-examination, establish that the defendant has not paid the witness. It is the prosecutor alone who has the ability to offer the witness freedom. Ask the defendant how valuable a year of freedom would be to him. Then move into the witness's expectations for freedom in exchange for his testimony. For the jury, this will put into monetary terms just what the witness is being paid for his testimony. For whatever reason, this has a much more profound effect on the jury than speaking about mere leniency in exchange for testimony.
Know What Story to Develop on Cross-Examination
Not all cooperating witnesses are created equally. There are generally three types of cooperating witnesses. First, there is the co-actor; that is, a defendant who is charged in the same incident as your client. Secondly, there is the witness who is facing unrelated criminal charges, but who claims to have actually witnessed some of the events in question. Thirdly, there is the jail-house snitch who claims to have been in custody with the defendant and who claims that the defendant made certain admissions to the snitch.
These cooperating witnesses are listed above in order of dangerousness. A cooperating co-actor can, easily, do the most damage. Since he is already charged in the incident, it is assumed that he was, in fact, an eyewitness to the crime in question. Co-actors tend not to be subject to the methods of impeachment described below; and, further, co-actors will almost always be prompted by the prosecutor to tell the jury, "I really feel bad about what happened, and I just want to tell the truth and get this off my chest. I want to make it right"
English professors claim that there are a finite, and relatively small, number of story lines throughout human history. Every story, then, is merely a variation on an existing theme. Human beings seem hard-wired to listen to stories. Therefore, an effective cross-examination will tell the jury a story that ends with the witness being a liar and a coward. In cross-examining a co-actor, it is essential to focus on the natural human tendency to point fingers rather than to accept blame. The co-actor does not really want to make it right. He wants to avoid blame. The jury will implicitly understand this motivation. Your job as the defense lawyer is to make this natural tendency become a full-blown story before the jury. The witness will almost always portray himself as some unwitting follower who simply "fell in with the wrong crowd." He will say that he really did not know what was going to happen until it was too late. In your cross-examination, then, you must develop the theme that the witness is part of the bad crowd; that the witness was the leader; and he knew fully well what the plan was from the very beginning. Establish that the witness was present for the planning stages. Establish the strong historical bond between the witness and your client. The prosecutor will then argue to the jury that this only makes the snitch more credible. "It's got to be difficult," the prosecutor will argue, "for the witness to testify against his good friend." That is correct- it is difficult; but it is a lot easier than taking the blame himself. Why, on direct examination, did the witness pretend that he barely knew the defendant? Only then should you get into the witness's expectation of leniency from the prosecutor. The jury will be left with the impression that this witness is so selfish, and so despicable, that he is willing to deny his friend, and to hang his friend out to dry in order to save his own hide. This is one of oldest stories in the book. It is the story of Peter's denial of Jesus.
Closely Scrutinize the Criminal Record
Snitches tend to have long criminal records. Do not be content, though, with the standard statutory impeachment procedure (i.e. "Have you ever been convicted of a crime; if so, how many times?) Get the snitch's criminal record well ahead of time and closely scrutinize it. Many snitches are professionals- that is, they have cooperated before. When you review the criminal records you may find cases in which the snitch was facing ten felony counts and the case was resolved with a misdemeanor conviction and probation. This is a good indicator that the person cooperated in that case. Review that court file. Contact the prosecutor. If you are able to establish that the person cooperated previously, this is relevant evidence on cross-examination. It establishes the witness's expectation of leniency and it is also relevant to the witness's motive to testify falsely. If the witness was rewarded in the past for testimony that implicated another defendant, this certainly makes it more likely that the witness is motivated to give inculpatory testimony in the present case- whether or not the inculpatory testimony is true.
Avoid the Jail-House Snitch
The best way to handle the jailhouse snitch is to avoid him altogether. At the first meeting with your client you must impress upon him the absolute necessity of not talking about the case with any of the other individuals in the jail. Additionally (and this is often next to impossible), try to persuade your client that he does not need or want a copy of the written discovery materials with him in the jail.
There is reason to believe that most jail-house snitches are, in fact, liars. They get their information about the case from newspaper accounts or from your client's discovery materials. They then telephone their lawyers and ask for the detectives to come and interview them concerning purported "admissions" made by the defendant. These snitches then merely recite what they have seen in the media, or in the police reports, as though it came directly from the defendant's mouth.
Jailhouse snitches are difficult to cross-examine about the details of the offense because they have a built-in response, "I don't know about that, sir, your client didn't tell me about that. He just told me . . . ." So, avoid questioning the witness about the details of the offense. Instead, question him about the biographical details of your client's life (unless, of course, the two men do know each other). The snitch will likely know nothing about your client. You will get a series of responses to the effect of, "I don't know. He's didn't me that . . ." The picture you will paint for the jury is that these two men do not know each other. They do not discuss the intimate details of each other's lives. This makes it very difficult to believe, then, that the defendant confessed a homicide to this person.
The Bottom Line
Be sensitive to the fact that, if believed by the jury, cooperating witnesses can be devastating to your case. Do not overlook opportunities to devastate a snitch's testimony with cross-examination. Spend extra time preparing to deal with a snitch. If you do, you will give your client the opportunity to have the case decided on the evidence rather than on the testimony of paid, professional witnesses.