Cooperating Witness Impeachment Material You Must Demand.

In federal criminal trials, prosecutors have a constitutional duty to disclose material evidence affecting the credibility of testifying witnesses. In the Supreme Court case Giglio v. United States, the Court held that the prosecution's duty to disclose material evidence was not fulfilled In that specific case, the prosecution’s failure to disclose an immunity agreement involving one of its witnesses resulted in a reversal of the conviction because it violated a fundamental constitutional principle.

When preparing for trial, your defense counsel should start by making a formal demand for all Brady and Giglio material. Then, your attorney should ask for specific pieces of information and records that prosecutors often forget to include in their initial productions.

The first item to demand is the witness’s cooperation agreement. This agreement can reveal the benefits that the witness is expecting to receive in exchange for testifying against the defendant, and it can give your lawyer valuable insight for use during cross-examination. These benefits can include:

• Favorable sentencing recommendations
• Granting immunity from federal charges (including charges already filed against the witness)
• Employment opportunities or other forms of government assistance

Finally, your lawyer should demand that the government disclose any other relevant materials in its possession. This can include both formal documents and informal statements, and it should encompass all information in the possession of the assisting government agencies as well. This includes agencies like the U.S. Department of Justice and the FBI, and it also includes all cooperating-witness-related records that federal prosecutors had access to in the course of the government’s investigation.

Which agreements, statements, benefits, and agency records should you request?

Often, prosecutors will introduce cooperating witnesses’ statements and agreements during their direct examinations. Because the prosecutors use these documents to build their cases and to boost the witnesses’ credibility, the precise language in the disclosed agreement could have significant impact. If the prosecutor fails to disclose a relevant section, the defendant’s lawyer may not know about it until he or she hears it from the witness during direct examination. This can lead to a difficult and unplanned cross-examination.

Next, your defense attorney should inquire about any other benefits that prosecutors have offered to the cooperating witness. It may be possible to uncover a reward arrangement such as a federal sentencing reduction or an arrangement for a benefits package. For example, U.S. Sentencing Guidelines § 5K1.1 allows the government to make a request to the federal sentencing court to grant a departure from the federal sentencing guidelines for “substantial assistance” in federal sentencing reductions. That may create a strong incentive for a witness to deliver a conviction, and your attorney needs to be able to inform the jury of this if you face a criminal charge.

National Legal Aid and Defender Association (NLADA) recommends that federal criminal defense attorneys request the following:

• Name, address, and phone number for each prosecution witness
• Address, city, state, and ZIP code of the person with whom the witness was in contact
• All written statements, records, or transcripts made by the witness
• A record of all criminal convictions, including dates and counts in the information, indictment, or plea agreement
• All promises, agreements, and benefits, monetary or otherwise, that the government or its representatives are providing to the witness and are not expressly set forth in the agreement
• The witness’s contact information for the witness’s attorneys and investigators
• Any and all documents that are in the possession of the witness’s attorney and that the witness’s attorney is authorized to produce
• The witness’s contact information for the witness’s attorneys and investigators
• The date and time of any meetings between the witness’s attorney and prosecutors
• Any evidence supporting allegations of misconduct by any agent or representative of the government involved in the case
• The list of any and all materials that are in the government’s possession but the government refused to produce in response to the defense’s request

How can the defense prove that cooperation makes the witness unreliable?

The Sixth Amendment’s Confrontation Clause allows a defendant to test the credibility of any witness that may be produced by the prosecution during trial by questioning them in a courtroom setting. When a witness is cooperating with the government, this can mean questioning about, among other things, the witness’s motives, incentives, and biases. NLADA identifies “bias and motive” as two of several “crucial witness credibility issues” for defense counsel to evaluate during cross-examination.

NLADA also recommends that defense counsel ask witnesses about all pertinent prior statements the witness previously made or adopted. This is one of several tools that may be available to the defense for impeachment of cooperating-witnesses.

• Impeachment
• Prior Statements
• False Statements
• Statements That Are Incomplete
• No Prior Statements
• Contrary Prior Statement

One method of impeachment involves pointing out the inconsistencies between a witness’s testimony and his or her prior statements. These are called contrary prior statements. If the witness gave a prior statement that was completely different from what the witness said in court, this should be a point for a defense attorney.

Another method of impeachment involves pointing out that the witness gave a false statement to the government during the investigation of the defendant. Cooperating witnesses often have a history of dishonesty, or they may have given prior statements that turned out to be false. They may have given a statement that was only partly complete, or they may have made no prior statements. If so, this also should be a point for a defense attorney to attack.

Even if a witness made a prior statement that is fundamentally identical to his or her testimony at trial, that statement should be used as another point for impeachment as well. Your defense lawyer should ask why the cooperating witness said so much more (or so much less) in the witness’s statement, or why the witness failed to give the full details at the time he or she gave the government the information. Again, this may help the jury understand the witness’s true nature and motives.

One thing worth knowing before you speak to anyone in custody: those calls are recorded, and prosecutors listen to them. Spodek Law Group tells every client family the same thing.

Can another witness or a state discovery rule change how you use impeachment material?

California Penal Code section 1054.3 governs the specific discovery obligations of the defense: “Upon the written request of the prosecutor, the defendant shall produce to the prosecutor... Material, records, or documents that are designated and specified in the request.” California’s reciprocal discovery rules require the defense to disclose evidence it plans to use to offer positive or supporting facts for a witness’s testimony. However, the law distinguishes between this and material that the defense will use solely to impeach a prosecution witness. If the defense lawyer is not able to use the information they have to offer supporting evidence, then it should receive different treatment under federal or state rules.

If your defense lawyer identifies a separate witness whose testimony could contradict that of the witness being used to impeach (or that witness’s independently admissible testimony), then that witness should be in a position to testify at trial. But, while the pages provided show a situation in which a separate impeachment witness was available and useful, they do not establish a universal rule. There is no rule that a second cooperating witness should be permitted to testify as an impeachment witness, and, even if there were a rule, this does not mean the witness would be a good one. The a possibility that a different cooperating witness is available for impeachment is a question that the defense lawyer will need to determine, and they will need to assess whether the available second witness has the credibility and the information necessary to help you.

When must impeachment material arrive, and what can you do if it comes late?

If you receive a witness’s statement for the first time at the courthouse, right before you are supposed to cross-examine them, your lawyer needs to request more time so that he or she can review the statement. The government is supposed to turn over this information long before trial. Withholding such information may constitute a violation of the court’s discovery order, and it may constitute a violation of the law as well.

When discovery violations occur, the defendant’s lawyer must work with the court to choose a suitable remedy. In many cases, this may simply involve requesting a continuance before the trial judge. If the violation is sufficiently severe, however, more significant sanctions may be appropriate. For example, under California’s Penal Code and rules of criminal procedure, some discovery violations can result in the exclusion of evidence, or even the dismissal of criminal charges.

Evidence Code section 352 also gives the trial court a basis for refusing to allow evidence to be introduced. According to Section 352, the court may exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will... Create an unfair surprise, distract the trier of fact, or unnecessarily lengthen the trial.”

When disputes over discovery or admissibility of evidence arise, the defense lawyer must preserve an adequate record of the proceedings. This will ensure that the appellate court is provided with enough information to identify a trial error and order appropriate corrective action if necessary.

Finally, in federal criminal cases, counsel must identify the applicable circuit restriction. Federal circuit restrictions generally apply in cases involving civil litigation and torts. In federal criminal cases, citations to controlling appellate decisions must be present and any limitations must be clearly specified.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.