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 coo erate, !"on#t worry, e$eryone snitches here.! %hat is an o$erstatement& 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 $ery li'ely to ha$e to contend with a coo erating witness for the go$ernment. in his own criminal case in e(change for his testimony. necessary, to testify at trial. *ost lawyers 'now that the rosecutor is re+uired to disclose during the disco$ery rocess any romises, inducements, or rewards that ha$e been gi$en to the witness. ,or this reason, the rosecutors almost always tell the snitch that no u &front romises will be made& the witness must coo erate to the e(tent ossible, and only then will the rosecutor e$aluate the $alue of the ser$ices and reward the witness accordingly. %he defense lawyer on cross&e(amination, of course, must fully de$elo the witness#s expectation of leniency from the go$ernment. As' the witness what he is charged with and what he e( ects from the go$ernment in e(change for his testimony. -ou will be sur rised at what they e( ect& and so will the .ury. It will always be far more generous than what the rosecutor will actually gi$e. If you, as the defense lawyer, merely rely on the rosecutor to ro$ide you with the material for cross& e(amination, though, you are missing ma.or o ortunities for im eachment and your failure in this regard may e$en amount to ineffecti$e assistance of counsel. A !coo erating witness! is a witness who is himself facing criminal charges and who e( ects consideration )s ecially in federal court, the go$ernment always ma'es it well worth a coo erating witness#s while to !debrief! with go$ernment agents and, if

Emphasize That This is a Paid Witness

Any .uror would be shoc'ed if it were re$ealed that the rosecutor aid a witness /01,111 to come to court to testify that the defendant committed the crime. Attem ting to influence a witness#s testimony with romises or with threats is a crime. %his is one reason that go$ernment ! roffer letters! always romise not to commit any more em hasi2e in se$eral different ways that the witness is re+uired to render !truthful testimony.! But encouraging a criminal to testify truthfully is about li'e ma'ing him crimes if he is released from .ail. Why should it be any less shoc'ing, then, that the rosecutor ays the witness with his freedom3 4ow much more $aluable than money is a year or two of liberty3

"efense lawyers fre+uently miss the o aid witness for the rosecution. damning the testimony is for the defendant.

ortunity to ortray the coo erating witness as what he is: a In your cross&e(amination, establish that the defendant has As' the %hen mo$e into the witness#s e( ectations

Worse, he is a aid witnesses who is aid more de ending on how

not aid the witness. It is the rosecutor alone who has the ability to offer the witness freedom. defendant how $aluable a year of freedom would be to him. for freedom in e(change for his testimony. witness is being aid for his testimony.

,or the .ury, this will ut into monetary terms .ust what the

,or whate$er reason, this has a much more rofound effect on

the .ury than s ea'ing about mere leniency in e(change for testimony.

Know What Story to Develop on Cross-E amination

5ot all coo erating witnesses are created e+ually. %here are generally three ty es of coo erating witnesses. ,irst, there is the co&actor6 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 ha$e actually witnessed some of the e$ents in +uestion. %hirdly, there is the .ail&house snitch who claims to ha$e been in custody with the defendant and who claims that the defendant made certain admissions to the snitch. %hese coo erating witnesses are listed abo$e in order of dangerousness. A coo erating 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 +uestion. 7o&actors tend not to be sub.ect to the methods of im eachment described below6 and, further, co&actors will almost always be rom ted by the rosecutor to tell the .ury, !I really feel bad about what ha chest. I want to ma'e it right! )nglish rofessors claim that there are a finite, and relati$ely small, number of story lines throughout human history. )$ery story, then, is merely a $ariation on an e(isting theme. 4uman beings seem hard& wired to listen to stories. %herefore, an effecti$e cross&e(amination will tell the .ury a story that ends with the witness being a liar and a coward. In cross&e(amining a co&actor, it is essential to focus on the natural human tendency to oint fingers rather than to acce t blame. %he co&actor does not really want to ma'e it right. 4e wants to a$oid blame. %he .ury will im licitly understand this moti$ation. -our .ob as %he the defense lawyer is to ma'e this natural tendency become a full&blown story before the .ury. crowd.! 4e will say that he really did not 'now what was going to ha en until it was too late. ened, and I .ust want to tell the truth and get this off my

witness will almost always ortray himself as some unwitting follower who sim ly !fell in with the wrong In your cross&e(amination, then, you must de$elo 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. )stablish that the witness was resent for the lanning stages. )stablish the strong historical bond between the witness and your client. %he rosecutor will then argue to the .ury that this only ma'es the snitch more

credible. !It#s got to be difficult,! the rosecutor will argue, !for the witness to testify against his good friend.! %hat is correct& it is difficult6 but it is a lot easier than ta'ing the blame himself. e(amination, did the witness retend that he barely 'new the defendant3 Why, on direct 8nly then should you get into

the witness#s e( ectation of leniency from the rosecutor. %he .ury will be left with the im ression that this witness is so selfish, and so des icable, that he is willing to deny his friend, and to hang his friend out to dry in order to sa$e his own hide. %his is one of oldest stories in the boo'. It is the story of 9eter#s denial of Jesus.

Closely Scr!tinize the Criminal "ecord

Snitches tend to ha$e long criminal records. "o not be content, though, with the standard statutory im eachment rocedure :i.e. !4a$e you e$er been con$icted of a crime6 if so, how many times3; <et the snitch#s criminal record well ahead of time and closely scrutini2e it. *any snitches are rofessionals& that is, they ha$e coo erated before. When you re$iew the criminal records you may find cases in which the snitch was facing ten felony counts and the case was resol$ed with a misdemeanor con$iction and robation. 7ontact the %his is a good indicator that the erson coo erated in that case. Re$iew that court file. erson coo erated re$iously, this is rosecutor. If you are able to establish that the

relevant evidence on cross&e(amination. It establishes the witness#s e( ectation of leniency and it is also rele$ant to the witness#s moti$e to testify falsely. If the witness was rewarded in the ast for testimony that im licated another defendant, this certainly ma'es it more li'ely that the witness is moti$ated to gi$e incul atory testimony in the resent case& whether or not the incul atory testimony is true.

#void the $ail-Ho!se Snitch

%he best way to handle the .ailhouse snitch is to a$oid him altogether. At the first meeting with your client you must im ress u on him the absolute necessity of not tal'ing about the case with any of the other indi$iduals in the .ail. Additionally :and this is often ne(t to im ossible;, try to ersuade your client that he does not need or want a co y of the written disco$ery materials with him in the .ail. %here is reason to belie$e that most .ail&house snitches are, in fact, liars. %hey get their information about the case from news a er accounts or from your client#s disco$ery materials. %hey then tele hone their lawyers and as' for the detecti$es to come and inter$iew them concerning ur orted !admissions! made by the defendant. %hese snitches then merely recite what they ha$e seen in the media, or in the olice re orts, as though it came directly from the defendant#s mouth. Jailhouse snitches are difficult to cross&e(amine about the details of the offense because they ha$e a built&in res onse, !I don#t 'now about that, sir, your client didn#t tell me about that. 4e .ust told me..! So, a$oid +uestioning the witness about the details of the offense. Instead, +uestion him about the biogra hical details of your client#s life :unless, of course, the two men do 'now each other;. %he snitch will li'ely 'now nothing about your client. -ou will get a series of res onses to the effect of, !I don#t 'now.

4e#s didn#t me that . . .! other.

%he icture you will aint for the .ury is that these two men do not 'now each %his ma'es it $ery difficult to

%hey do not discuss the intimate details of each other#s li$es.

belie$e, then, that the defendant confessed a homicide to this erson.

The %ottom &ine

Be sensiti$e to the fact that, if belie$ed by the .ury, coo erating witnesses can be de$astating to your case. "o not o$erloo' o ortunities to de$astate a snitch#s testimony with cross&e(amination. S end

e(tra time re aring to deal with a snitch. If you do, you will gi$e your client the o

ortunity to ha$e the

case decided on the e$idence rather than on the testimony of aid, rofessional witnesses.