NYSACDLFall 2013 Trial Seminar
United States CourthouseBuffalo, NY
November 15, 2013
Trial Preparation and Cross-Examinationin Complex Criminal Cases:
We Reap What We Sow
Rodney O. Personius, Esq.PERSONIUS MELBER LLP2100 Main Place TowerBuffalo, NY 14202(716) [email protected]
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. INFORMATION IS POWER - SOWING THE SEEDS. . . . . . . . . . . . . . . . . . . . . . . . 3
A. Leave No Stone Unturned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Discovery Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Relationship with the Prosecutor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. The Client.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Motion Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Contact with Counsel for Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Joint Defense Arrangement with Co-counsel. . . . . . . . . . . . . . . . . . . . 6
7. Private Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. Site Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Freedom of Information Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. Trial Subpoenas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11. Retention of Counsel for Prospective Witnesses. . . . . . . . . . . . . . . . . . 8
B. Formulate a Defense Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Pretrial Submissions: Motions in Limine and the Trial Memorandum.. . . . . 10
1. Motions in Limine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. Trial Memorandum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. Other Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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II. PREPARATION FOR CROSS EXAMINATION - THE CULTIVATION PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Reference Points. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Prior Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. Interview Reports and Related Notes.. . . . . . . . . . . . . . . . . . . . . . . . . 13
3. Trial Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. The Plea Agreement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5. Affidavits Accompanying the Criminal Complaintor Warrant Applications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6. Criminal History of the Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7. Statements of and Reports Related to Other Witnesses.. . . . . . . . . . . 16
8. Direct Testimony of the Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9. Site Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. Manuals and Guidelines.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11. Surveillance Logs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12. Response of Witness to Prior Question. . . . . . . . . . . . . . . . . . . . . . . . 18
B. Mastering the Content of a Witness’s Prior Statement. . . . . . . . . . . . . . . . . . 19
C. Critically Reviewing Cross Examination Resources. . . . . . . . . . . . . . . . . . . . 21
1. Contradictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2. Equivocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3. What is Not Said. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4. Information Helpful to the Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5. Completeness of the Response.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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6. Indicators of Motivation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7. Degree of Recollection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8. Interaction of Prosecutor with Witness. . . . . . . . . . . . . . . . . . . . . . . . 24
III. THE HARVEST – CONDUCTING THE EXAMINATION. . . . . . . . . . . . . . . . . . . 25
A. Impeachment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Nullification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
C. Mitigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
D. Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
E. Leveling the Playing Field. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
F. Laying Foundation for Later Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
G. Witness Responses During the Examination. . . . . . . . . . . . . . . . . . . . . . . . . . 28
H. Reinforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
I. The Power of Suggestion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
J. Diminishment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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INTRODUCTION
– You win cases with preparation, you lose them in the courtroom.
In the Southern Tier of New York State, the month of May 1982 brought daily sun-drenched
skies, with temperatures regularly in the mid to high 70s. It was an unprecedented stretch of fine
weather for late spring. That month was spent second-chairing a complex drug prosecution in
Steuben County. Not an ideal time to be involved in a lengthy trial, but opportunity seldom is
determined by convenience.
The defendant came from a hard-working family of Italian descent. He was intelligent and
gregarious, but not terribly ambitious. He liked the good life, and supported his ostentatious lifestyle
by selling powder cocaine and pills in a most open and notorious fashion. Few were surprised when
the BCI Division of the State Police came knocking. The end result was an armful of felony drug
charges. His devoted father wanted nothing but the best defense.
The trial was venued in the county seat at Bath, NY. The defendant had an uncle who
operated a bar 20 minutes down Route 17 in Corning. Above the bar was a well-appointed two
bedroom apartment. Jury selection was scheduled to begin on the first Monday in May. After weeks
of preparation, we packed up all of our trial materials, as well as enough personal items to carry us
through out expected four week stay in Steuben County. Arriving at the uncle’s apartment, we were
pleasantly surprised by its condition. Trial preparation continued almost immediately, with no break
for dinner. Bedtime for lead counsel was 9:00 pm; I stayed up another two hours on busy work just
to feel part of the team.
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It was a fairly sleepless night, tossing and turning in a strange environment with a major trial
on the horizon. Laughter and muffled music from the bar below interrupted the quiet of the night.
I finally did doze off, only to be awakened seemingly moments later by the sound of running water.
I ignored this distraction from my sleep for what this time seemed like hours, but must have only
been minutes. I then realized it was the shower in the apartment. Checking the clock in my room,
I discovered it was 4:15 am. By 5:00 am, lead counsel was back at the dining room table, preparing
for jury selection, opening statements, and cross examination of the People’s multitude of trial
witnesses. Little did I know at the time that this same grueling routine would continue for another
27 days. Four weeks later, after a relatively lengthy deliberation in a hopeless case, the jury returned
a verdict of guilty on all counts. The defendant was remanded. We then took our final 20 minute
ride back to the apartment, packed up all of our belongings, and said our goodbyes to the
disappointed family. Upon our return to Buffalo, we took the weekend off, only to return to the
office on Monday in order to make ready for the next battle.
Lead counsel was John W. Condon, Jr. He prepared for and tried every case as if it was his
last. John used fancy words in casual conversation, such as impeccable, exquisite, sterling, and
grand. Ironically, it was these very terms that defined his approach to criminal defense, both inside
and outside the courtroom.
Insight into John Condon’s approach to criminal defense litigation is embodied in the article
attached as Exhibit A, which was written late in his illustrious career, shortly before his retirement.
It provides countless valuable insights on the trial of a criminal case, which must always begin with
unfailing attention to detail at the preparation phase. In his words, “You win cases with preparation,
you lose them in the courtroom.”
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I. INFORMATION IS POWER - SOWING THE SEEDS
A. Leave No Stone Unturned
At the earliest stage of a client’s representation, steps must be initiated to identify and pursue
sources of information regarding not only the factual backdrop of the prosecution, but also the
identity, background, and available evidence associated with each individual who may later be called
as a witness at trial.
1. Discovery Materials
In a white collar criminal prosecution, it almost always will be the case that there will be
voluminous documentary discovery. With the advent of the digital age, these materials are most
often now provided on one or more electronic disks. The production of discovery in electronic
fashion, while convenient, poses challenges. The most important step to be taken when this
discovery is received is to immediately conduct a cursory review of what has been provided in order
to understand the vastness of the process of reviewing and organizing this data. Care must be taken
to not minimize this task due to the size of a disk, which can so easily be put away in a file and
forgotten about until several months or perhaps weeks before trial. Not only will insufficient time
then be available to become familiar with the voluminous contents of the disk(s), any opportunity
to conduct follow up related to either the substance or incompleteness of the disclosure will be lost.
As with voting, review and familiarization with provided discovery must be conducted early and
often.
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2. Relationship with the Prosecutor
Developing on a consistent basis a trusting relationship with members of the prosecutor’s
office has many advantages. The amount of information that can be acquired through informal
discussions and email cannot be overstated. There is no reason why fierce advocacy on behalf of
a client can only be accomplished by maintaining an adversarial relationship with opposing counsel.
The litigation process is stressful enough, without adding an acrimonious relationship with your
adversary to the mix. These same considerations apply to the agents and investigators who work on
the case. Every casual contact presents an opportunity to add to your fund of information regarding
the client’s case.
3. The Client
The client is often overlooked as a valuable source of information. Time should be taken at
the outset of the representation to meet with the client on one or more occasions in order to develop
a full understanding of the facts. In white collar cases, there is also often a need to become educated
on the industry, business, or other activity that is the focal point of the prosecution. Regular contact
should be maintained with the client throughout the representation. Each one of these contacts
presents an opportunity for something new to be learned about the case. The client should be
involved in the discovery review process, and then time taken to meet with the client to discuss the
results of each review. If a client raises 10, 20, or 30 useless suggestions followed by a single
valuable thought regarding the case, then the entire process has been a worthwhile endeavor.
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4. Motion Practice
Creativity can be used with motions as a means of acquiring information about the case.
Oftentimes, a motion to dismiss an indictment may, under controlling case precedent, represent a
futile endeavor on the merits, but still be worth pursuing due to the information that will necessarily
be included in the prosecution’s response. Of course, any opportunity to request a hearing, where
testimony will be taken, should never be bypassed. Again, even if a suppression motion directed
against a search and seizure or the acquisition of statements from a client appears hopeless, having
the opportunity to place one or more prospective trial witnesses on the stand, and to extract
testimony regarding circumstances pertinent to the prosecution, should not be overlooked. As well,
within reason, consideration should be given to pursuing areas having only an ancillary relationship
to the core issues of the hearing, but potentially germane to the eventual defense at trial. From a
standpoint of cross examination, there is no more valuable resource than prior sworn testimonial
evidence of a witness. Aside from their inherent value, motions in limine can also yield useful1
information regarding the prosecution’s evidence and theories.
5. Contact with Counsel for Witnesses
If expected prosecution witnesses are represented by counsel, time should be taken to contact
those attorneys to inquire about each witness’s expected trial testimony, as well as any deal entered
into between the witness and the prosecution. The worst that can happen is that the attorney will
Confronting eventual trial witnesses in the hearing context also provides an opportunity to1
size up the witness. See discussion, infra, at Section I.A.11. on retention of counsel for prospectivewitnesses.
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decline to discuss the matter. In this event, less than five minutes has been wasted pursuing this
opportunity. By comparison, if the attorney is willing to share information regarding the witness’s
cooperation and expected testimony, the information gathering process has been advanced.
6. Joint Defense Arrangement with Co-counsel
Regular contact should be maintained with counsel for any co-defendants. The availability
of either a formal or informal joint defense agreement enables these communications to extend to
a full sharing of what otherwise would be privileged information. Through these contacts, important
information about the case can be obtained, and ideas may be exchanged regarding matters such as
motion practice and trial strategy.
7. Private Investigation
Retaining a private investigator to pursue trial witnesses and other defense leads also should
be evaluated in every case. With limited exceptions, the prosecution does not have a right to place
a gag order on its witnesses. A resourceful investigator, armed with a full understanding of the
background facts and goals of the investigation, can yield extremely beneficial information. In the
context of these contacts, consideration should be given to not simply having the investigator
conduct an oral interview of the witness. If at all possible, a short statement by the witness on
critical points should be obtained or, in an appropriate circumstance, an agreement made that the
investigator will prepare a written report and then later meet with the witness in order to determine
the witness’s willingness to formally adopt the report. The value, of course, in taking these steps is
that the use of these materials at trial will be enhanced.
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8. Site Inspections
No matter the kind of case, relevant geographic or office locations should be visited. The
value of site inspections applies with equal force in white collar prosecutions. Knowing about
something as mundane as the layout of an office can be helpful in examining a witness at trial about
conversations that are claimed to have taken place in that setting. If the subject matter of the
prosecution is an industry or business, time should be taken to visit the site and obtain a full
understanding of the operation.
9. Freedom of Information Requests
In many cases, valuable information can be obtained using Freedom of Information laws.
If a regulatory agency has had oversight of an industry or business that is the subject of a
prosecution, request can be made for access to files regarding the agency’s historical regulation of
the operation. In cases where the activities of agents or investigators are called into question, this
disclosure device can be used to obtain manuals or guidelines setting out the rules applicable to the
conduct of law enforcement personnel.
10. Trial Subpoenas
Another useful disclosure tool, particularly once a trial date is set, is the issuance of a
subpoena duces tecum. On the federal side, the use of subpoenas in criminal cases is governed by
Federal Rule of Criminal Procedure 17. There are specific requirements that must be satisfied before
a subpoena may be used, and these factors need to be weighed before the subpoena is issued. See
generally United States v. Nixon, 418 U.S. 683 (1974). Oftentimes, it is necessary that the
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subpoenaed material be delivered to the Court, so that it is available to both sides. This circumstance
does not, however, represent a reason in most instances to overlook this resource. It should never
be presumed that your adversary will expend gobs of time reviewing what is produced. In most
instances, the prosecution is far too consumed preparing its witnesses and evidence for trial.
11. Retention of Counsel for Prospective Witnesses
In many instances, controlling the flow of information is as important as acquiring
information. In any case where counsel has the ability to retain one or more attorneys to represent
potential witnesses at the investigative stage of the proceeding, this step should be taken. The
liberties that law enforcement will take with an unrepresented, as opposed to a represented, witness
are marked. Having counsel present for interviews and preparatory sessions serves at least three
important purposes. First, the risk that the witness will be tricked, or somehow mistreated, is
minimized. Second, the presence of counsel reduces the chances that, either intentionally or
inadvertently, the interviewing agent will inaccurately record the information provided by the
witness. Third, the witness’s attorney is able to make a record of the interview, which can then be
shared with defense counsel. The use of counsel for witnesses continues to be of great value even
as the matter approaches trial, as oftentimes prosecuting counsel will schedule testimonial
preparation sessions with its witnesses in advance of trial. An additional benefit of retaining counsel
for expected trial witnesses is the opportunity it presents, through retained counsel, to meet with the
witness in advance of trial. Not only will this encounter prove substantively valuable as an avenue
for gaining a better understanding of the witness’s forthcoming testimony, it also permits defense
counsel to size up the witness in advance of trial. John Condon used to speak of trying a witness on
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for size. What he meant was getting to know what makes the witness tick, the witness’s
mannerisms, how the witness responds to questions, and the witness’s intellect. Knowing in advance
who your witness is can be a difference maker.
B. Formulate a Defense Theory
– Twenty-five years’ experience should never be one year’s experiencerepeated twenty-five times.
The preparation of every criminal case for trial should be centered around a theory of defense.
Trial preparation must be purposeful. The defense theory provides this purpose; it makes available
a foundation, which can then be used for preparing opening and closing arguments, devising a
strategy for cross examination, and making important decisions on evidence, if any, to be tendered
by the defense at trial. In most instances, the defense theory must include an answer to the “why”
question; that is, why is this defendant being charged? As well, the theory of defense should give
consideration to framing the expected trial evidence in a way that will cause trial jurors to pause
before passing judgment, with the prospect that this hesitation, no matter how momentary, will
blossom into a reasonable doubt.
Naturally, a defense theory can only be constructed once counsel has a complete grasp of the
evidence, both that to be offered by the prosecution at trial and that otherwise known to the defense
team. As well, the legal elements of each charge must be known. This means that all applicable jury
instructions pertinent to each charged offense must be accessed, analyzed, and understood well in
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advance of trial. Oftentimes, review of these instructions will give rise to further research of case
law regarding the elements of each offense, which may prove useful in fashioning a defense theory.
The Court should be educated on the right to present a defense. Annexed as Exhibit B is a
discussion of case law addressing this topic on both the federal and state levels.
The defense theory should not be overly involved or complex. It should be brief and to the
point, and should, if at all possible, carry a visceral quality that will impact the jury not only
intellectually, but also emotionally. The theory should be developed independent of what may have
worked in an earlier case. Save the shortcuts for crossing vacant lots. It is for this reason that John
Condon counseled against repeating the same experience twenty-five times in succession. Be both
dedicated and committed to creativity.
C. Pretrial Submissions: Motions in Limine and the Trial Memorandum
1. Motions in Limine
A motion in limine is a useful tool for not only limiting the prosecution’s evidentiary
presentation, but also for introducing the Court to evidentiary issues that may surface at trial. These
motions are often used in an effort to restrict the introduction of prior bad act or other unduly
prejudicial evidence against the defendant at trial. They can also, however, be used to address other
important evidentiary considerations, such as the scope of impeachment of prosecution witnesses
or the admissibility of evidence to be propounded by the defense during trial proceedings.
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2. Trial Memorandum
In all federal criminal cases, it is mandatory that a trial memorandum be filed. Consideration
should be given, however, to also submitting a pleading of this character in state prosecutions. The
memorandum serves at least two important purposes. It provides an opportunity to inform the Court
regarding the defense theory, as well as critical evidentiary or other issues that may surface at trial.
An informed trial judge is a happy judge. No one, including members of the bench, likes surprises.
Secondly, the discipline of preparing a trial memorandum forces counsel to carefully think through
the trial process in a more comprehensive way during the preparation phase, well in advance of jury
selection. This enables an informed decision to be made on the requisite components, as well as the
necessary timing, of trial preparation.
D. Other Considerations
Although not needed in every case, the preparation of a chronology is almost always a useful
tool both in the pretrial and trial contexts. Consideration may also be given to preparing a summary
of evidentiary goals, premised upon the defense theory, which identifies how, at trial, each
component of the defense theory will be established. For example, if that theory depends upon the
introduction of evidence, what witness will be used to introduce that evidence? Is there a way to
accomplish all of your evidentiary goals without the need to either put the defendant on the stand or
even present a defense case? Can the evidentiary goals, as is often the case, be established through
cross examination? If so, which witnesses can be used to establish specific components of the
defense theory? Depending upon the number of witnesses and complexity of the trial, consideration
may also be given to developing a personae list. Are there documents, including photographs, that
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are helpful to the defense and can be tendered as trial exhibits, ideally during cross examination of
the prosecution’s witnesses? It is well known that demonstrative evidence is compelling and can
have a persuasive impact on trial jurors.
II. PREPARATION FOR CROSS EXAMINATION - THE CULTIVATIONPROCESS
A. Reference Points
1. Prior Statements
By far the most valuable resource during cross examination is any prior statement of the
testifying witness. All the better if the statement is in the form of testimony, either before the grand
jury, during a felony or suppression hearing, or at a prior proceeding. It is for this reason that every
effort should be made to seize upon any opportunity to have an expected trial witness examined
under oath. Equally useful is any prior written statement of the witness, whether in the form of a
confession or an affidavit. Although rare, transcripts of intercepted conversations of the witness,
garnered during the investigation of the underlying matter, represent another resource. With the
ubiquity of computers, cellular telephones, and iPads, a whole new treasure trove of witness
statements has surfaced – emails, text messages, Facebook entries, and other forms of social media.
Steps should be taken to regularly inspect any social media sources having a limited shelf life. Data
from other, more permanent electronic or digital sources should also be periodically investigated.
The advent of the internet demonstrates that Art Linkletter was too shortsighted in coining the phrase
“Kids say the darnedest things.” Grownups do too.
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2. Interview Reports and Related Notes
Unless reviewed and expressly adopted by the witness, a report of interview, and any related
notes, may not be used to directly impeach a witness. On the other hand, these materials still have
great value as a device to refresh the recollection of a witness. In any instance when a report is being
used to refresh recollection, consider making it known to the trial jury that the source of the
document being used to refresh recollection was generated by a law enforcement official. If the
witness claims that his or her recollection was not refreshed after reviewing the document, the jury
is still likely to infer that the witness said something different to a member of law enforcement on
a prior occasion.
3. Trial Exhibits
Particularly in a white collar criminal prosecution, the multitude of exhibits marked by the
prosecution for trial provides another valuable source of information for cross examination. It may
be that these exhibits contain information which is useful to the defense, and can affirmatively be
brought to the jury’s attention during cross examination. On the other hand, these exhibits may
contain information that is contradictory to prior testimony or statements of one or more prosecution
witnesses. It is not enough to know in a general way what exhibits will be used by the prosecution
at trial. These materials need to be thoroughly reviewed and dissected during the preparation phase
with the same degree of attention as is given to a witness’s prior statements.
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4. The Plea Agreement
Particularly in federal prosecutions, cooperating witnesses will execute a written plea
agreement with the Government. These agreements usually contain different sections that each
provide a fertile ground for exploration during cross examination. Attention should be given to the
factual basis for the plea, which oftentimes does not conform to the evidence presented at trial or to
the direct testimony of the witness. These inconsistencies should be exploited during cross
examination. There will always be a section which speaks to the benefit the witness expects to
receive for cooperating. This, of course, needs to be brought to the jury’s attention. As importantly,
the plea agreement usually sets forth information on the penalties for the offense underlying the
guilty plea. As part of conveying to the trial jury the favorable deal made by the witness, this
information can be used to inform the factfinder of the significant jail time exposure being faced by
the defendant, which can act as a form of nullification or mitigation during the deliberation process.
The plea agreement should also contain information regarding who decides if the witness is telling
the truth, and the importance of truth telling. This information may be used to underscore the
witness’s desire to curry the Government’s favor. The Government usually reserves the right to
change its position regarding sentencing if new information is learned which varies from that
previously provided by the witness. This, it can be suggested through examination, creates a strong
incentive for the witness to continue telling the same story at trial. As well, in most instances, the
agreement will provide that sentencing is to be postponed until after the witness has completed
cooperating, which includes testifying at trial. This presents another incentive for the witness to
testify in a fashion that supports the Government’s case.
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5. Affidavits Accompanying the Criminal Complaint or Warrant Applications
Affidavits prepared by law enforcement personnel in applying for a search, arrest, or
eavesdropping warrant, or in connection with the filing of a criminal complaint, often contain
detailed information regarding the then available evidence linking the defendant to criminal activity,
as well as the prosecution’s theory of the case. As importantly, these documents will often contain
inculpatory information about other suspects, who later become cooperating witnesses. These
allegations need to be scrutinized in the context of preparing for cross examination of the
cooperating witness. Alternatively, if the witness is already cooperating, the supporting affidavit will
recite a summary of the cooperator’s version of the events. This summary needs to be compared to
other statements of the witness for the purpose of noting any inconsistencies. Oftentimes, it is
forgotten that these resources exist.
6. Criminal History of the Witness
It is a rule that the prior criminal record of any testifying witness must be made available to
the defense. Of course, not every prior conviction is a proper subject of impeachment at trial,
particularly on the federal side where this issue is governed by Federal Rules of Evidence 608 and
609. It is necessary to have a complete grasp of these rules. In most instances, the better tactic is
to address the scope of cross examination of a prosecution witness by prior conviction before the
witness takes the stand or, at minimum, before the commencement of cross examination. In either
event, the opportunity to make a reasoned presentation is enhanced, and the risk of an immediate
knee jerk ruling in the prosecution’s favor is reduced. Remember, no one, including the presiding
judge, likes surprises.
15
7. Statements of and Reports Related to Other Witnesses
The purpose of cross examination is not limited to impeaching the credibility of the testifying
witness. As is set forth below, there are multiple other purposes for asking questions during cross
examination. This opportunity can only be maximized if counsel has a complete grasp upon what
has been said about facts relevant to the case by other witnesses to be called by the Government.
Through cross examination of one witness, inherent contradictions can be established by exploring
events and transactions with one witness that are known will be in conflict with testimony on those
subjects to be given by a different witness. Because the standard controlling the outcome of the case
is reasonable doubt, and due to the fact there is no way to gauge which facts will be most important
to a given trial juror, maximizing the number of inconsistencies and contradictions placed before the
trial jury is critical.
8. Direct Testimony of the Witness
Careful attention must be given to the direct testimony of a witness who is to be cross
examined. Particular care should be used to identify any equivocation in the witness’s response to
questions. Naturally, any inconsistencies in the witness’s direct testimony, as compared to prior
statements or testimony of that witness, need to be noted. There is seldom, if ever, any time during
the course of trial to coast. In all cases, the direct testimony of a witness about to be cross examined
requires the attorney’s undivided attention.
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9. Site Inspections
As noted above, having a working knowledge of the physical environment where criminal
activity reportedly occurred or conversations were allegedly conducted is particularly valuable. It
is almost always the case that the layout of a location is different from what is conjured up by the
mind. The questioning of any witness proceeds with greater confidence if the examiner has a full
understanding of the physical context in which the circumstances underlying the witness’s testimony
occurred.
10. Manuals and Guidelines
If the witness is a law enforcement officer, there more than likely are written guidelines that
govern the handling of a particular matter. Invariably, these rules are not precisely followed. There
may be instances when these missteps by law enforcement are more than trivial, and deserve to be
brought to the attention of the trial jury. This determination can, however, only be made if, during
the preparation phase, the attorney has access to any written manuals or guidelines governing law
enforcement’s conduct. At times, this data may be obtainable through a colleague, or through an
informal request presented to the prosecutor. Other options for obtaining this information include
the issuance of a subpoena in advance of trial, or the pursuit of a Freedom of Information request to
the responsible police agency.
11. Surveillance Logs
In any case where police surveillance has been conducted, steps should be taken to obtain
logs memorializing what was observed, as well as any related notes, photographs, and videotapes.
17
This data should then be scoured for information regarding observations made by law enforcement
of the activities not only of your client, but also any confederates who are to testify on behalf of the
Government at trial. The more sources of information regarding a particular event that are available
for consideration, the greater the likelihood an inconsistency will surface.
12. Response of Witness to Prior Question
One of the more useful sources of cross examination is the responses of the testifying witness
to questions posed during the cross. This oftentimes represents the most fruitful segment of any
cross examination. The immediate past responses of a witness may provide an extremely valuable
source of impeachment because the entire process takes place directly in the presence of the trial
jury. Great care must be taken to closely listen to each response provided by the witness during cross
examination. The mind cannot wander; the eyes should not focus upon anything other than the
demeanor of the witness as each response is given. At times, this form of impeachment should be
undertaken immediately after an answer is given by the witness. There may, however, be occasions
where the response should be revisited at a later, more opportune point in the examination. There
is no set rule on timing.
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B. Mastering the Content of a Witness’s Prior Statements
Always remember the distinction between contribution andcommitment. Take the matter of bacon and eggs. The chicken makesa contribution. The pig makes a commitment.
– John Mack Carter
In most cases, the correlation between preparation time and courtroom time will be in the
neighborhood of five to one. In other words, for every one hour spent in the courtroom, at least five
hours must be spent in preparation. What largely determines the amount of required preparation time
is the quantity of resources available for cross examination. The greater the available resources, the
more effective in most instances the cross examination provided the necessary time has been
invested outside the courtroom to prepare for the examination. In a word, any effective cross
examination must be based upon a complete mastery of all available resources. In this context,
defense counsel must emulate the pig, not the chicken.
How does this process work? The answer depends upon the intelligence, experience, and
discipline of the examiner. Whatever approach is taken, it is imperative that, before approaching the
podium, the examiner have a complete knowledge of the available resources that may be relied upon
during the examination, as well as an ability to locate a given passage within any resource in
seconds.
One approach to this daunting task proceeds as follows. Any resource to be used during cross
examination, including without limitation prior statements of the witness, should be read one or two
times without any marking aids for the purpose of gaining a general understanding of what is
19
reflected in the document. It should then be read again using a highlighter, for the purpose of
narrowing down what are the pertinent portions of the document from a cross examination
perspective. The next review should focus upon identifying the subject matter of each segment of
the document that may be relied upon during cross examination. A further review would then,
within each identified topic area, underscore the specific portions of the document to be used during
cross examination. A final review would thereafter be used to develop some system for easily
referencing the impeachment sources within the document. This is, of course, only the preliminary
phase of the preparation process.
The next step is to prepare an outline of topics to be addressed during cross examination.
Care should be taken to begin each topic on a separate page since, depending upon how the direct
testimony is presented, there may be a need to change the order of the anticipated cross examination.
The purpose of the outline is to identify in shorthand form every topic to be covered during cross
examination, as well as the resources which may be used during the examination. The value of this
exercise is not limited to providing a guide of topics to be covered during the examination. The
exercise of writing out topic areas and impeachment reference points also reinforces the subject
matter in the examiner’s mind.
There will be times when the examination of the witness extends over a lunch recess or
evening. In this event, whatever time is available should be used to re-review the outline in
comparison to the witness’s direct testimony. In many instances, this review will result in changes
being made to the planned approach to the examination, making it more efficient and more effective.
The important point is that the cross examiner’s job is not done once the original outline is prepared.
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That is only a starting point for a process which continues up to the point when the final question
is asked during the cross examination.
There is a need for flexibility, of course, during the examination. Just because one page of
the outline identifies a topic for cross examination does not mean that topic needs to be addressed
during the examination. Oftentimes, during a trial, less is more. Be flexible.
C. Critically Reviewing Cross Examination Resources
The following represent non-inclusive examples of the types of information, useful during
cross examination, that may exist within a given resource.
1. Contradictions
Developing contradictions or inconsistencies within a witness’s own testimony, or between
witnesses, or in the prosecution’s theory, is in almost every instance a worthy endeavor. It is only
through a repeated review of available resources that these inconsistencies and contradictions can
be identified. What becomes at trial an important contradiction may arise from what appeared during
the preparation phase to have been a seemingly trivial fact, which only serves to underscore the
importance of gaining a full understanding of each cross examination resource. In almost every
instance when a witness testifies on direct examination, additional inconsistencies will surface in
comparison to the available cross examination resources. Counsel will only be able to identify and
take advantage of these inconsistencies if the contents of all available resources have been
completely mastered. Absent adequate preparation, these important opportunities to demonstrate
contradictions will be lost.
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2. Equivocation
Whether in existing resources, or during a witness’s testimony on direct or cross examination,
instances of equivocation need to be exploited. Any indication the witness is less than certain as to
a particular fact should be brought to the jury’s attention. Again, remember that the controlling
standard in a criminal case is reasonable doubt. If a prosecution witness has a doubt with respect to
a matter of importance, so too should the factfinder.
3. What is Not Said
In responding to a particular question, what the witness does not include in his or her
testimony may be as important as what is said. This is particularly important when, as is often the
case, the prosecution seeks to either overstate or misstate the importance and implications of a
witness’s testimony. Cross examination can then be used to confirm that the misplaced argument
of the prosecution premised upon the witness’s testimony is not worthy of consideration. Don’t
allow the prosecution to get away with even a single unfair characterization of what the witness
knows about the facts or your client.
4. Information Helpful to the Defense
As noted above, cross examination is not limited to destroying a witness’s credibility. In
many instances, the witness may have information which is, in some fashion, useful to the defense.
This information should be earmarked for use in the event, during cross examination, the witness
strays from earlier helpful testimony on a particular topic. As appropriate, that resource can be used
to either refresh the recollection of, or impeach, the witness.
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5. Completeness of the Response
Particularly in the case of prior statements of a witness, a determination has to be made
regarding whether the response of or information provided by the witness is incomplete. If the
available resource reflects what the witness has said on a topic is the entirety of the witness’s
recollection, this should be noted, as that resource can then be used at trial in the event the witness
decides to expand upon his or her earlier statements on the same subject to the disadvantage of your
client. If the response of the witness in the resource is incomplete, consideration should be given
to why that is the case. Is this a reflection on the witness’s lack of knowledge, or does the witness
have some motivation for not providing additional details on the subject?
6. Indicators of Motivation
Whenever determining where the truth lies, or does not lie, we take into consideration the
motivation of the proponent of a particular fact. On a broader scale, this is why prosecutors
invariably attempt to inject a defendant’s claimed motivation as part of its theory of guilt. In the case
of witnesses, even if it is not possible to impeach the substance of the witness’s testimony, the
willingness of the factfinder to even consider that testimony can be undermined by drawing attention
to facts causing the witness to testify in a particular fashion, usually favorable to the prosecution.
Accordingly, in reviewing cross examination resources, special note must be given to any indicators
of motivation (such as seeking to curry the Government’s favor).
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7. Degree of Recollection
In any prior statement of a witness, what degree of detail is provided as to events implicating
the client in criminal activity? Does the statement contain information as to important details
tending to reinforce the credibility of what is being said? Are important details omitted or, better
yet, do the details misalign in successive statements on the same subject matter. Can information
on the same subject matter from the prior statements of another witness be usefully compared to that
of the witness to be cross examined as a means of establishing yet another inconsistency in the
prosecution’s case?
8. Interaction of Prosecutor with Witness
In the case of transcripts of prior testimony, is there anything in the introductory comments
by the prosecutor, or preliminary colloquy between the prosecutor and the witness, suggesting
collusion or bias? Do the prosecutor’s questions lead the witness in a fashion that is unfair? During
the witness’s testimony, is there evidence of a break or recess, followed by later testimony which
differs in some substantial way from the witness’s prior responses? Is there anything in the
prosecutor’s questions to suggest that the witness in being threatened or coerced into providing
particular testimony? Any of these circumstances may form a proper basis for cross examination,
although care should be taken to avoid putting the prosecutor on trial unless absolutely warranted
by the evidence.
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III. THE HARVEST – CONDUCTING THE EXAMINATION
Cross - examination is the principal means by whichthe believability of a witness and the truth of his orher testimony are tested.
Davis v Alaska, 415 U.S. 308, 316 (1974).
The single goal most often associated with cross examination is impeachment of the
credibility of the witness. There are, however, countless other purposes that may be served by
engaging in this exercise. Impeachment may be the most invigorating and provide the greatest
theater, but there are other goals that merit consideration both during the preparation phase and at
the time of the actual examination. Choices on where to go with a given witness will, however, be
determined by the thoroughness and precision of the preparation. The following represent examples
of the goals that may be served by cross examination.2
A. Impeachment
Impeachment is, as noted, the most commonly recognized purpose served by a cross
examination. This avenue may be pursued by highlighting contradictions or inconsistencies in the
It is always important to evaluate whether or not a particular witness should even be2
questioned. If the only purpose to be served is to reinforce adverse testimony provided on direct,then what is the point of the examination? If the witness does not hurt your client during directexamination, is there any real benefit in pursuing a line of impeachment? A colleague has remarkedthat nothing is always a good thing to do, and often a good thing to say. If you do elect to examine,a second, important point: leave the last question for closing argument. Many a fine crossexamination has completely unraveled at the hand of one question too many.
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witness’s testimony, past misbehavior serving to render the witness unworthy of belief, or a bias
either against the client or in favor of the Government. Attached as Exhibit C is a pleading which
addresses case law on the scope of permissible impeachment of a prosecution witness on the subject
of bias. How impeachment is handled is a matter of style. It need not involve a raised voice nor a
pointed finger to be effective. Care should be taken to ensure that predicate questions are asked
providing a basis for impeachment, as opposed to refreshing recollection. Beginning a question with
“Do you remember,” does not suggest an intention to impeach; rather, it is directed to the witness’s
memory. Avoid this trap.
B. Nullification
Directly seeking to nullify a trial jury is not permitted. This does not mean that steps cannot
be taken during trial to suggest that the jury pause before convicting your client on a ground having
more to do with fairness or sympathy than logic. In the case of a cooperating witness, it is almost
always possible to convey to the trial jury the witness’s sentencing exposure both before and after
striking a deal with the prosecution. It is the “before” part which may serve the nullifying purpose,
providing the factfinder with a glimpse into the punishment to be faced by the defendant if
convicted. In a federal case, depending upon the intellect of the witness, the plea agreement may
also be used to educate the trial jury regarding the operation of the United States Sentencing
Guidelines, including the criteria used in assigning the all-important offense level and the mandated
jail time associated with a that offense level.
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C. Mitigation
If the witness has knowledge of the defendant’s background, or family circumstances, cross
examination may present an opportunity to convey this important information to the factfinder
without the need to put the defendant on the witness stand. A particular defense may also be aided
by questions asked during cross examination.
D. Education
Particularly in white collar criminal prosecutions, consideration should be given at any early
stage of the proceedings to using a Government witness to educate the trial jury about one or more
important background facts, or other circumstances germane to the prosecution. The witness may
have knowledge regarding the business or industry which is the backdrop for the prosecution.
Consider using an early Government witness on cross examination as an opportunity for you to be
the one who is the first to answer the jury’s questions regarding the surrounding circumstances of
the prosecution. In a sense, make the prosecutor’s witness your own witness. Introduce these
important facts on your terms.
E. Leveling the Playing Field
Trial jurors, in most cases, begin the trial by identifying with the prosecution and law
enforcement. This is neither improper nor unexpected. Cross examination may provide a means for
demysticizing the jurors’ perception of your adversary. Care must be exercised to not engage in any
improper ad hominem attack; however, if there is a way to use your examination to put the
Government on trial, that tactic merits serious consideration. One example of this strategy is to
27
explore with a police witness the law enforcement techniques not undertaken during the
investigation, weaving into your questions the suggestion that use of these techniques would have
more reliably demonstrated whether or not the defendant is guilty.
F. Laying Foundation for Later Testimony
Through thorough preparation, it should become apparent that building blocks to be used
with a later witness must be put in place with the testimony of an earlier witness. Consider using
cross examination for this purpose. If facts known to the witness being questioned will become
important in the examination of a later witness, bring out those facts during the cross examination
process of the earlier witness.
G. Witness Responses During the Examination
The discussion, above at Section II.A.12., includes mention of the importance of listening
carefully to each response given by a witness during cross examination. Either immediately after
a particular response is given or, at a later time during the examination, that response may provide
fertile ground for further examination. This technique can be extremely effective with a trial jury
as all phases of the impeachment take place contemporaneously in the jury’s presence.
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H. Reinforcement
There certainly will be instances when a trial witness provides testimony on direct
examination that is in some fashion helpful to the defense. Consideration should be given to again
drawing out this testimony during cross examination.
I. The Power of Suggestion
There will be instances when either an affirmative or negative response to a question will do
no harm. The witness will be directly impeached by an affirmative response to a question, and
inferentially impeached by a denial. In the proper context, usually in the case of a cooperating
witness, this technique can be very effective. Even a denial plants the seed in the jury’s mind that
the witness has a nefarious purpose.
J. Diminishment
If it is known that, at a later point in the prosecution’s case, facts will be disclosed that are
harmful to your client, and cross examination of an earlier witness presents an opportunity to bring
that fact to the jury’s attention, consideration should be given to taking the sting out of this evidence
by first raising it on your examination of the earlier witness. It is entirely possible that the jury as
a whole will place less emphasis upon the importance of that evidence if it is first drawn out by the
defense.
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CONCLUSION
There is no mystery to the trial of a complex case. The number of hours to be spent in the
courtroom will necessarily increase proportionally the number of hours that must be spent on
preparation. Mastery of the facts is essential. By taking a disciplined, methodical approach to the
prosecution’s case at a early stage, the framework for proper preparation will be in place. As the trial
date approaches, there must then be a commitment to excellence, what John W. Condon, Jr. might
characterize as exquisite, impeccable, sterling, or, perhaps, grand preparation of your case for trial.
Only then will you be ready in a truly meaningful way to fight the good fight in the courtroom.
Rodney O. Personius, Esq.PERSONIUS MELBER LLP(716) [email protected]
30
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORK____________________________________
UNITED STATES OF AMERICADEFENDANT [REDACTED]
v. SUPPLEMENTAL PRETRIAL MEMORANDUM
[REDACTED], et al.Cri. No. [REDACTED]
Defendants.____________________________________
INTRODUCTION
This submission is intended as a supplement to Defendant [redacted] Pretrial Memorandum,
dated July 30, 2012 [Doc. No. 308]. Since receiving Jencks Act, 18 U.S.C. §3500, and Giglio (405
U.S. 150 [1972]) materials on September 14, 2012, there have been ongoing discussions with the
Government regarding the completeness of that production. While the degree of cooperation among
counsel regarding trial preparation-related issues continues to be extraordinary, it is apparent that the
Government, acting through Assistant United States Attorney [redacted], and the defense do not hold
the same view regarding the permissible scope of impeachment of a cooperating government witness
for bias.
As has been stated in the past, one of the critical components of Mr. [redacted]’s theory of
defense is that many of the cooperating witnesses who will testify at trial on behalf of the
Government are not telling the truth, and are misstating the evidence as a means of currying favor
with the Government. Stated otherwise, being positioned to fully test the credibility of the
Government’s witnesses is crucial to Mr. [redacted]’s defense strategy.
ARGUMENT
As a general proposition, bias impeachment is always relevant. “The partiality of a witness
is subject to exploration at trial and is ‘always relevant as discrediting the witness and affecting the
weight of his testimony.’ 3A J. Wigmore, Evidence s 940, p. 775 (Chadbourn rev. 1970). We have
recognized that the exposure of a witness’ motivation in testifying is a proper and important function
of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316
(1974) [Citation and footnote omitted.]
It is not difficult to understand why witness bias is universally acknowledged as a proper
subject of cross-examination, particularly when the relationship being explored is between the
witness and the Government:
Bias is a term used in the “common law of evidence” to describe therelationship between a party and a witness which might lead thewitness to slant, unconsciously or otherwise, his testimony in favorof or against a party. Bias may be induced by a witness’ like, dislike,or fear of a party, or by the witness’ self-interest. Proof of bias isalmost always relevant because the jury, as finder of fact and weigherof credibility, has historically been entitled to assess all evidencewhich might bear on the accuracy and truth of a witness’ testimony.
United States v. Abel, 469 U.S. 45, 52 (1984).
Bias may arise as a result of the witness’ relationship with the Government even in the
absence of an express understanding of what consideration the witness will receive in return for
cooperating with the Government. For example, in United States v. Bagley, 473 U.S. 667 (1985),
a government witness entered into a specific agreement with the Department of Alcohol, Tobacco,
and Firearms which provided that, in exchange for cooperation, “‘the United States will pay to said
vendor a sum commensurate with services and information rendered.’” 473 U.S. at 671. In response
2
to a defense request for all inducements offered to the Government’s witnesses, this agreement was
not disclosed. The Supreme Court found that the non-disclosure of the ATF agreement constituted
error, reasoning that “[t]he fact that the stake was not guaranteed through a promise or binding
contract, but was expressly contingent on the Government’s satisfaction with the end result, served
only to strengthen any incentive to testify falsely in order to secure a conviction.” Id.
The Second Circuit had arrived at the same conclusion five years earlier in DuBose v.
Lefevre, 619 F.2d 973 (2d Cir. 1980). The evidence revealed that the Government’s cooperating
witness had been promised that the state prosecutors would “do the right thing” in exchange for her
testimony against the defendant. 619 F.2d at 978. At trial, the state prosecutor argued that no
agreement had been entered into with this witness. The Second Circuit disapproved of this conduct,
and noted the following:
The prosecution cannot, by keeping its promises or consideration toa witness general in language or tone, escape the fact that it gives thewitness reason to believe that his or her testimony will lead tofavorable treatment by the State. Unquestionably agreements ingeneral terms to reward testimony by consideration create anincentive on the witness’ part to testify favorably to the State and theexistence of such an understanding is important for purposes ofimpeachment.
619 F.2d at 979. Finding a violation of constitutional magnitude, the defendant’s conviction was
reversed.
Crucial to unearthing witness bias is not what has been either represented or not represented
by the Government, but rather what belief has been formed in the mind of the witness regarding
reward for cooperation based upon the statements or actions of law enforcement personnel, including
the prosecutor:
3
In attempting to establish the motives or bias of a witness againsthim, a defendant may not only elicit evidence showing that thegovernment made explicit promises of leniency in return forcooperation, but may also show conduct which might have led awitness to believe that his prospects for lenient treatment by thegovernment depended upon the degree of his cooperation. Actionsevidencing the intention of the government to trade leniency forcooperation are, however, irrelevant unless it can be established thatthe witness knew of these actions.
United States v. Campbell, 426 F.2d 547, 549 (2d Cir. 1970). This concept continues to be viable.
In United States v. Salem, 643 F.3d 221 (7 Cir. 2011), the Court observed that the Government’sth
cooperating witness’ “understanding of an informal tit-for-tat arrangement could be enough to show
bias, even without evidence of an actual agreement between him and the government.” 643 F.3d at
228.
The central significance of a cooperating witness’ belief carries over to cases where it is
undisputed that the prosecution does not even have the ability to confer the benefit sought by the
witness. In Lindh v. Murphy, 124 F.3d 899 (7 Cir. 1997), an expert witness called by the Stateth
during the mental-condition phase of a death penalty case faced, in an unrelated matter, both the loss
of his license and incarceration due to having sexually abused his patients. The Court found that the
defense should have been permitted to explore on cross-examination the witness’ misconduct in the
unrelated matter, based upon a bias rationale, notwithstanding that the prosecutor involved in the
hearing was shown to not have the ability to influence the decision-making of the prosecutor
handling the unrelated investigation of the witness:
Lindh could have used the excluded evidence in two ways: first toshow that Roberts had a reason to be biased in the prosecutor’s favor,hoping that helpful testimony would mitigate his criminalpunishment, even though the Dane County prosecutor (who chargedLindh) could not directly influence the Milwaukee County prosecutor
4
(who was conducting the investigation of Roberts); second, to showthat the background information used to add luster to Roberts (andhence weight to his testimony) was misleading.
124 F.3d at 900. The Seventh Circuit agreed with Lindh’s counsel that the absence of any evidence
of a deal between the witness and the Milwaukee County prosecutor was of no moment. “But
Roberts may have believed that testimony helping the prosecution in this case, which achieved
notoriety throughout Wisconsin, would aid his cause, if only because it was bound to come to the
attention of the judge who presided in the prosecution against him.” 124 F.3d at 901.
The source of a witness’ bias is not necessarily limited to the witness’ cooperation against
a defendant who is on trial. The existence of criminal exposure arising from an unrelated matter may
well motivate an individual to not only offer cooperation with respect to that matter, but also
constitute an inducement to cooperate in other matters. In other words, the witness might, with some
justification, believe that cooperation in other matters will inure to the witness’ benefit at the time
a charging decision is made regarding the separate, unrelated matter where the witness has criminal
exposure. See, e.g., United States v. Martin, 618 F.3d 705, 728 (7 Cir. 2010). th
As well, even evidence of a past cooperative relationship with the Government is relevant
to the issue of bias. For example, in United States v. Leja, 568 F.2d 493 (6 Cir. 1977), the Courtth
reasoned as follows in concluding that evidence of an informant’s past relationship with the
Government, from a perspective of forming the basis for an expectation on the part of the informant,
constituted a proper basis for bias impeachment:
The best answer to the relevance and, indeed, the vital nature of theinformation which the defense sought to elicit comes from theappellant’s argument that it was not the pay for the immediate casewhich was so important as the expectation based on past experience,
5
which acts as such a powerful motive for the informer to distort oreven to fabricate.
568 F.2d at 498. Continuing, the Court observed that “the evidence of how much Mr. Sawicki was
receiving from the government for past services and might therefore expect in the future was highly
relevant to the question of his potential bias and interest.” 568 F.2d at 499.
On this topic, the observation of the Second Circuit in the context of an expert witness’ past
relationship with the Government is apt:
The district court may be right in holding that the testimony doesn’tshow bias; however, it does show a possibility, or perhaps even aprobability, of bias. We find substantial merit in Judge Engel’sstatement in United States v. Leja, 568 F.2d 493, 499 (6 Cir. 1977),th
that evidence of what a witness received from the Government forpast services and might therefore expect in the future is “highlyrelevant to the question of his potential bias and interest.”
885 F.2d at 109-1010.
CONCLUSION
A criminal defendant’s ability to explore the bias of a government witness is by no means
restricted to the witness’ cooperation in the matter for which the defendant is on trial, nor is the
exploration of bias framed by the existence of a specific understanding as to the reward the witness
may expect to receive for cooperating. What is important are the beliefs of the witness, which may
be premised upon non-specific, more generalized or even cryptic statements or actions of the
Government, the fears and expectations of the witness with respect to the witness’ exposure in a
wholly unrelated matter, and the past history of rewards received by the witness in exchange for
cooperation. It will be the intention of the defense to pursue bias impeachment of the Government’s
6
witnesses at trial with these concepts in mind. Given the importance of the jury’s assessment of
witness credibility to the outcome of this trial, having the ability to fully and properly explore areas
of potential bias will represent a crucial component of Mr. [redacted]’s theory of defense.
Dated: Buffalo, New YorkSeptember 28, 2012
_________________________Rodney O. Personius, Esq.PERSONIUS MELBER LLPAttorneys for Defendant [REDACTED]2100 Main Place TowerBuffalo, NY 14202(716) [email protected]
TO: AUSA [redacted]U.S. Attorney’s OfficeFederal Centre138 Delaware AvenueBuffalo, NY 14202
[redacted]Attorneys for Defendant [REDACTED]
7