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To Handle the Snitch at TrialBy: 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 cooerate, !"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 cooerating witness for the go$ernment. A

!cooerating witness! is a witness who is himself facing criminal charges and who e(ects consideration

in his own criminal case in e(change for his testimony. )secially in federal court, the go$ernment

always ma'es it well worth a cooerating witness#s while to !debrief! with go$ernment agents and, if

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 cooerate 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 surrised 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 maor oortunities for imeachment and your failure in this regard

may e$en amount to ineffecti$e assistance of counsel.

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. Attemting to influence a witness#s testimony with

romises or with threats is a crime. %his is one reason that go$ernment !roffer letters! alwaysemhasi2e in se$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 romise not to commit any more

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

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"efense lawyers fre+uently miss the oortunity to ortray the cooerating witness as what he is: a

aid witness for the rosecution. Worse, he is a aid witnesses who is aid more deending on how

damning the testimony is for the defendant. In your cross&e(amination, establish that the defendant has

not aid the witness. It is the rosecutor alone who has the ability to offer the witness freedom. As' the

defendant how $aluable a year of freedom would be to him. %hen mo$e into the witness#s e(ectations

for freedom in e(change for his testimony. or the ury, this will ut into monetary terms ust what the

witness is being aid for his testimony. or whate$er reason, this has a much more rofound effect on

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

Know What Story to Develop on Cross-Eamination

5ot all cooerating witnesses are created e+ually. %here are generally three tyes of cooerating

witnesses. irst, there is the co&actor6 that is, a defendant who is charged in the same incident as yourclient. 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 cooerating witnesses are listed abo$e in order of dangerousness. A cooerating 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 subect to the methods of

imeachment described below6 and, further, co&actors will almost always be romted by the rosecutor

to tell the ury, !I really feel bad about what haened, and I ust want to tell the truth and get this off my

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 accet blame. %he co&actor does not reallywant to

ma'e it right. 4e wants to a$oid blame. %he ury will imlicitly understand this moti$ation. -our ob as

the defense lawyer is to ma'e this natural tendency become a full&blown story before the ury. %hewitness will almost always ortray himself as some unwitting follower who simly !fell in with the wrong

crowd.! 4e will say that he really did not 'now what was going to haen until it was too late. 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

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4e#s didn#t me that . . .! %he icture you will aint for the ury is that these two men do not'now each

other. %hey do not discuss the intimate details of each other#s li$es. %his ma'es it $ery difficult to

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, cooerating witnesses can be de$astating to your

case. "o not o$erloo' oortunities to de$astate a snitch#s testimony with cross&e(amination. Send

e(tra time rearing to deal with a snitch. If you do, you will gi$e your client the oortunity to ha$e the

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