Brent Mayr Speaks at Texas Criminal Defense Lawyers Association Seminar on Cross Examination of Cooperating Witnesses

Brent Mayr recently spoke at the Texas Criminal Defense Lawyers Association’s continuing legal education seminar, Cross Examination, in Dallas, Texas on the topic of Cross Examination of Cooperating Witnesses. Cooperating witnesses are often used as a large component of federal prosecutions. It’s one thing to have a federal criminal defense attorney who is experienced and has the knowledge and skills necessary to deal with cooperating witnesses. It’s another thing when your lawyer is the one teaching other lawyers how to do it.

Brent Mayr, Paul Schiffer, and Richard Esper all are experienced federal criminal defense attorney and, as some of the top federal criminal defense lawyers in Texas, have spoken at multiple seminars to other attorney. You can reach any of these attorneys at 855-NT-GILTY (855-684-4589) or click here to submit an email to the attorneys.

Cross Examination of Snitches

Cross examination is one of the more difficult tasks that a criminal defense attorney must undertake in their defense of a client. Whether the attorney is cross examining an officer or agent, a civilian witness, or an expert, a great amount of preparation, skill, and patience is needed.

But unlike the officer or agent, the civilian witness, or expert, a cooperating witness or “snitch” presents a whole array of unique challenges and problems. While in Texas, the use of snitches in state court is limited, almost every federal case prosecuted in any of the United States District Courts of Texas involves the use of at least one snitch. Therefore, to effectively represent clients in a case where a snitch is used, it is incumbent upon those attorneys to learn how to deal with the unique challenges and problems presented by these witnesses.

Law on Use of Cooperating Witnesses in both State and Federal Court

While Texas law has various statutes and evidentiary rules that apply to the use of snitches, it is the opposite in federal court.  In federal court, protections in place come primarily from Supreme Court decisions discussing constitutional implications on the use of snitches. Of course, these protections also extend to state court as well.

One of the most fundamental principles of law that apply to the cross-examination of snitches comes from the Supreme Court decision, Davis. v. Alaska, 415 U.S. 308 (1974).[1] In Davis, the Supreme Court held that refusing to permit a defendant to cross-examine the material witness against him as to motive and bias for testifying deprives a defendant of his Sixth Amendment right to confrontation.[2] More specifically, the Court held that a trial court commits constitutional error if it merely allows a defendant to ask the prosecution witness “whether he is biased” while not allowing defense counsel to explore the facts underlying “why the witness might have been biased or lacked impartiality.”[3] In order to explore these facts, however, defense counsel must fully investigate the witness to uncover them.

First and foremost, is any agreement between the witness and prosecution. Under Giglio v. U.S., 405 US 150, 154–55 (1972), when a witness’ credibility is an important issue in the case, evidence of any understanding or agreements about a future prosecution would be relevant to his credibility, and the jury would be entitled to know it. The critical inquiry is not what the actual deal between the Government and witness is, but what the witness’ understanding or expectation of the deal is since that is what leads to the potential for bias and the desire to curry favor. In any case where there is a potential for the Government to present testimony from a snitch, it is crucial that counsel get a court order requiring the Government to disclose in full the details of any agreement.

Even if no agreement exists, equally important is learning about any pending charges or possible charges against the witness, both of which have been held as proper grounds to cross-examine upon due to the possibility of the witness’ desire to curry favor with the Government.[4] The same applies if the witness is on probation, supervised release, or parole.[5] All of these provide a basis for the witness to curry favor with the Government and, therefore, are apt for cross-examination.

The following are a list of other possible sources of information related to a snitch’s credibility that must be disclosed:

  • Prior inconsistent statements. See Giles v. Maryland, 386 U.S. 66 (1967).
  • Other evidence inconsistent with snitch testimony. See Mesarosh v. U.S., 352 U.S.1, 10 (1956).
  • Evidence showing lack of capacity to observe or recall. See King v. Ponte, 717 F.2d 635, 639 (1st Cir. 1983).
  • Prior convictions of witness. See U.S. v. Auten, 632 F.2d 478, 481–82 (5th Cir. 1980).
  • Proffer statements from communications with the government. See U.S. v. Sudikoff, 36 F. Supp. 2d 1196, 1203 (C.D. Cal. 1999).

Of course, there is also the issue of discovering the identity of informants. While there is no federal statute or rule equivalent to Texas Rule of Evidence 508, under the Supreme Court decision, Rovario v. U.S., 353 U.S. 53, 62 (1957), the defendant is entitled to the informant’s identity if they were an actual witness to or directly participated in the criminal transaction.  Further, the fact that an informant was used should, at a minimum, be disclosed (even if their identity is withheld) so as to permit a defendant to file pretrial motions to determine whether disclosure of the informant’s identity is necessary to guarantee the defendant’s constitutional right to a fair trial.[6]

To quote from the Ninth Circuit:

The use of informants to investigate and prosecute persons engaged in clandestine criminal activity is fraught with peril. This hazard is a matter “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned” and thus of which we can take judicial notice. By definition, criminal informants are cut from untrustworthy cloth and must be managed and carefully watched by the government and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom. As Justice Jackson said forty years ago, “The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” A prosecutor who does not appreciate the perils of using rewarded criminals as witnesses risks compromising the truth-seeking mission of our criminal justice system. Because the government decides whether and when to use such witnesses, and what, if anything, to give them for their service, the government stands uniquely positioned to guard against perfidy. By its actions, the government can either contribute to or eliminate the problem. Accordingly, we expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery. This responsibility includes the duty as required by Giglio to turn over to the defense in discovery all material information casting a shadow on a government witness’s credibility.[7]

Applicable Rules of Evidence

In addition to these cases, one should familiarize themselves with the Rules of Evidence that ordinarily apply to cross-examination of snitches. They are as follows:

Rule 607 (same for TRE and FRE):Who May Impeach a Witness. This rule provides that “Any party, including the party that called the witness, may attack the witness’s credibility.”

Rule 608: A Witness’s Character for Truthfulness or Untruthfulness. Both the TRE and FRE allow a witness’s credibility to be attacked or supported by testimony about the witness’ reputation for having a character of truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. While both the TRE and FRE generally prohibit extrinsic evidence of specific instances of the witness’s conduct to attack the witness’s character for truthfulness, the FRE does permit the court to allow inquiry into specific instances of a witness’s conduct if they are probative of the character for truthfulness or untruthfulness of that witness or another witness whose character the witness being cross-examined has testified about. The best use of this rule against a snitch is finding people who know and have dealt with the snitch in the past, such as former employers, former spouses, neighbors that can come in and testify that the snitch has a reputation for having an untruthful character.

Rule 609: Impeachment by Evidence of Conviction of a Crime. Both the TRE and FRE have multiple differences but the major component common in both is permitting the use of prior convictions of the snitch to impeach their credibility. One thing worth noting about prior convictions: although the underlying facts of the conviction are not admissible under this rule, it is important to try and bring out as much of those facts as possible to help the jury get a good understanding of the snitch’s character and behavior. It is also important to get out as much detail as to how the case resulting in a prior conviction was resolved, e.g. if it ended with a plea bargain, whether the snitch received some benefit for cooperation there as well, whether in allocution they promised to “learn their lesson.” Finally, to give the prior convictions as much impact as possible, it is recommended that counsel use a visual aid to chart out all of the prior convictions to permit the jury to see a pattern of criminal activity and how the snitch can work to reduce their sentences and exposure.

Rule 611: Mode and Order of Interrogation and Presentation. This rule is what allows a court to limit cross-examination. The critical application of the rule is that you want your cross-examination to be a “procedure[] effective for determining the truth,” and not “wasting time,” or subjecting the witness to “harassment or undue embarrassment.”  Under the FRE, cross-examination is not to go beyond the subject matter of direct examination, however, this should not limit your cross-examination into possible motives to lie, bias, and desires to curry favor as it relates to the facts presented by the Government during direct examination.

Rule 612: Writing Used to Refresh Witness’s Memory. The FRE “gives an adverse party certain options when a witness uses a writing to refresh their memory” while testifying. While the rule permits the court to require the statement to be made available “before testifying, if the court decides that justice requires the party to have those options,” the rule further references 18 U.S.C. § 3500 which prohibits any such disclosure prior to the witness testifying. In practice, however, most Asst. U.S. Attorneys will provide you, at a minimum, some report (e.g. DEA 6) that documents what the snitch has told government agents. The key is to get a hold of as many prior statements of the snitch as possible. As will be discussed later, these can prove to be an invaluable source of information to cross-examine the witness upon. The TRE is very similar to the FRE; although it does not incorporate a statute similar to 18 U.S.C. 3500, it does explicitly limit the production of a witness’s statement until after testifying in criminal cases. Fortunately, because of the Michael Morton Act, Texas Code of Criminal Procedure 39.14 requires the production of a witness’s statement, including that of a snitch, “as soon as practicable after receiving a timely request from the defendant.”

Rule 613: Witness’s Prior Statement. Both the FRE and the TRE differ significantly although both rules deal with the witness’s prior statement. Under the FRE, when “examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness,” but must, on request, show or disclose it to the adverse party’s attorney. Extrinsic evidence of the prior inconsistent statement is only admissible after the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness about it. The TRE requires much more and expands on the grounds for cross-examination of the witness. As a foundation, the witness must first be advised as to the contents of the statement, the time and place of the statement, and the person to whom the witness made the statement. Like the FRE, the witness does not need to show or disclose its contents to the witness, but must make it available to the opposing party. Like the FRE, the witness must be given an opportunity to explain or deny the prior statement. Unlike the FRE, however, the TRE requires the witness to fail to “unequivocally admit making the statement,” before extrinsic evidence of the prior inconsistent statement is inadmissible. The TRE also goes beyond the FRE in that it also identifies and deals with “circumstances or statements that tend to show the witness’s bias or interest.”

5K1.1 & Rule 35

In any federal case involving the use of a snitch, one has to consider the two strongest motivations for the snitch to cooperate.

The first is the Motion for Downward Departure pursuant to §5K1.1. of the Sentencing Guidelines. If the snitch has a pending federal case and has provided information related to your client and agreed to testify against him or her, their reward will come in the form of what is referred to as a “5K1” motion by the Government. This motion, made exclusively within the discretion of the Government, will attest to whether the snitch has provided “substantial assistance in the investigation or prosecution of another person who has committed an offense.” Typically, the snitch will agree to cooperate and/or provide information to the Government, plead guilty pursuant to a plea agreement that contains reference to 5K1.1 and the snitch’s intent to provide substantial assistance, and then sentencing is postponed until after the snitch provides their testimony and the non-cooperating defendant is convicted and sentenced. This gives the snitch a huge incentive to provide favorable information to the Government and testify as effectively as possible. At the same time, this arrangement also permits the Government to attest — and the snitch to testify — that no benefit has, in fact, been conferred to the snitch. The standard response from the snitch will typically be that they have no assurances as to what sentence they will receive, have not received any promises or guarantees in exchange for their testimony, and that the sentencing discretion is left up to the sentencing judge in their case. Of course, the better their testimony and the better the outcome of the case in which they testify, the greater the possibility of a lower sentence. At sentencing, the Government will make the motion for downward departure pursuant to §5K1.1, permitting the court to sentence the snitch below the mandatory minimum and below the Guideline range for their offense, and will typically make a recommendation as to sentencing.

The second is a motion made pursuant to Rule 35 of the Federal Rules of Criminal Procedure, or what is referred to as a “Rule 35 Motion.” Whereas the 5K1.1 motion is made before sentencing, a Rule 35 motion is made after the snitch has been convicted and sentenced. In most cases, they are serving their sentence so the motivation to obtain a Rule 35 motion comes from the desire to get out sooner. Depending on the district, some Government prosecutors will have the snitch be sentenced and then file the Rule 35 motion.

Both of these options are “strong motivators” because under the federal criminal justice system, most defendants, especially in drug cases, are facing mandatory minimum sentences of 10 or 20 years in most cases and the only way for someone, especially with criminal history, to get below these mandatory minimum sentences is to cooperate with the Government and obtain either a 5K1.1 motion or a Rule 35 motion. Both explicitly permit a court to impose a sentence without regard to any mandatory minimum.

[1] Davis, has its roots primarily in Alford v. United States, 282 U.S. 687 (1931). In Alford, the Supreme Court first addressed the issue of the right to cross-examine a witness and establish a motive or bias for testifying. The defendant in Alford sought to ask the witness where he was residing in order to establish that the witness was in federal custody and therefore might expect some leniency from the prosecution in exchange for his testimony. In holding that the defendant was entitled to so cross-examine a witness, the Court emphasized that reasonable latitude be afforded the cross-examiner and that the confrontation clause protects the opportunity to cross-examine a witness as to possible motive or bias.  See also Delaware v. VanArsdall, 475 U.S. 673 (1986) (holding that the bias of a witness is subject to exploration at trial and is relevant as discrediting the witness and affecting the weight of his testimony. The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross examination).

[2] Davis, 415 U.S. at 318.

[3] Id.

[4] Id.

[5] Id.

[6] Rovario, 353 U.S. at 61–62.

[7] United States v. Bernal-Obeso, 989 F.2d 331, 333–34 (9th Cir. 1993)(citations omitted).