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October 19, 2005
Cooperating Witnesses and their Incentives to Lie
Talkleft follows that information with the following boilerplate from every criminal defense lawyer's closing argument in every conspiracy case:
"Treat this kind of testimony with extreme skepticism as to its veracity. It is testimony that has been purchased with promises of leniency. Freedom is a commodity far more precious than money. The incentives to lie and exaggerate are enormous.How many times have I heard this line of argument? (Lots.) And how many times have juries rejected it? (Lots. In fact, just about the same number of times as I've heard it.)"The prosecutor seeks the truth. But, whose truth? If the cooperator didn't provide "the truth" that supported the prosecution's theory in investigating or prosecuting others, there would be no deals or leniency given.
"This may turn out to be no different than your average drug conspiracy case. The question is, when the little guys roll on the big guys, or even just roll sideways or down, can you trust what they are telling the prosecutors, or are they just singing for their supper?"
Full disclosure: I was a federal prosecutor, not a federal defender, so I suppose I approach this line of argument with a degree of skepticism that matches the degree of belief placed in it by most defense lawyers. But it has never struck me as a generically persuasive argument. It is really a defense lawyer's only way of dealing with the enormous strategic problem that arises when a colleague of the defendant's--especially one without a criminal record--decides to trade what he knows for a reduced sentence, or for immunity (if he can get it).
And if the "he's-lying-for-a-deal" argument is generically rather weak, it strikes me as especially weak in the scenario we're talking about here. How plausible is it that top ideologically committed aides like John Hannah and David Wurmser would turn on George W. Bush and Dick Cheney and Scooter Libby and Karl Rove to save themselves a few months in the slammer? If their (presumed) testimony were lies, testifying would be an act of betrayal that they'd pay for every day of the rest of their lives.
So maybe top-level cooperators in a case like this would falsely implicate the most powerful people in the country to save themselves a little jail time. But I doubt it.
Posted by Eric at October 19, 2005 4:29 PM
Comments
This is all not to mention that if G. Gorden Lydee (SP?) is any example going to jail to protect a criminal president rather than ratting him out can lead to a very well paid career on talk radio and TV.
Posted by: Matt at October 19, 2005 7:12 PM
Who rolled on Nixon? Was that just a lie?
Posted by: Milhouse at October 19, 2005 7:13 PM