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 The Cooperating Witness In A Federal Criminal Case 

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Michael Santos

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Introduction

The federal government relies on the cooperation of individuals and entities in federal white-collar criminal investigations a lot, perhaps more than people realize.

Discussion

The federal government’s investigatory work benefits from using cooperating witnesses in a vast number of criminal cases. 

WHAT IS THE VALUE OF A COOPERATING WITNESS?

Cooperating witnesses can help law enforcement create timelines of events, identify key participants, and locate critical evidence, among other things. Indeed, criminal prosecutors understand the importance of cooperating witnesses to the criminal justice system. Cooperating witnesses are crucial to the administration of justice, and many criminal cases would never get prosecuted or result in convictions without the use of cooperating witnesses.

Cooperating witnesses are in a unique position to explain to the jury how a criminal enterprise operates or how a crime took place. Again, numerous crimes and criminal organizations could not get prosecuted without insider accounts. 

WHO DECIDES IF SOMEONE SHOULD BE A COOPERATING WITNESS?

In some cases, defense counsel offers up cooperation on their client’s behalf, while in other cases, prosecutors target people under investigation and ask whether they want to cooperate. 

The precise value that the government places on a person’s cooperation will be different in each case. There are many pros and cons to cooperation, and again, the pros and cons can vary widely case-by-case.

People must consult carefully with legal counsel when evaluating whether it makes sense in their particular case to cooperate in a criminal investigation. Each person must specifically discuss with counsel the potential benefits, risks, duties, and uncertainties that can arise with cooperation.

WHY SHOULD A PERSON BECOME A COOPERATING WITNESS IN A FEDERAL CRIMINAL INVESTIGATION?

There are substantial benefits for a cooperating witness (or informant) in a federal investigation, such as reduced exposure to charges and prison. When a cooperating witness has truthful information against others, the sentencing judge may grant a downward departure, reducing their punishment. 

We note that people should never obstruct a federal investigation and should always be cooperative with law enforcement while still protecting their legal rights. However, becoming a cooperating witness or an informant is another matter entirely.

WHAT IS THE DEFINITION OF “COOPERATING WITNESS?”

A cooperating witness is someone who testifies for the government to help prosecute a criminal defendant. In some cases, they may be a confidential informant.

WHO IS AN INFORMANT?

An informant or confidential informant (CI) assists law enforcement in building evidence against people suspected of a crime. CIs do this in exchange for leniency when they have pending charges or for money, and they usually work in secret through a law enforcement agent or handler.

DOES A PERSON HAVE TO PLEAD GUILTY TO BECOME A COOPERATING WITNESS? 

A cooperating witness will generally first plead guilty to agreed-upon charges, which increases their incentive to cooperate truthfully with law enforcement in exchange for a reduction in their criminal exposure. The reduced exposure may be in the form of a guilty plea to lesser charges, and a promise to request a downward departure from the judge at sentencing.

WHAT DOES A COOPERATING WITNESS HAVE TO DO?

The specific duties of a cooperating witness will depend on the nature of the case and the needs of the investigators. Generally, cooperation can include monitoring potential illegal activity, recording conversations with targets or suspects.

WHAT IS THE DIFFERENCE BETWEEN A COOPERATING WITNESS AND A CONFIDENTIAL INFORMANT?

A significant difference is that the identity of a cooperating witness is likely to become known once prosecutors file charges (something prosecutors warn about from the outset). On the other hand, law enforcement seeks to protect the identity and assistance of their confidential informants, though they cannot always guarantee that 100%.

Note that sometimes confidential informants agree to testify as part of their commitment to law enforcement, in which case their identity may become known.

DOES A COOPERATING WITNESS GO TO JAIL OR PRISON?

Becoming a cooperating witness is not a get-out-of-jail-free card. Many people cooperate with the federal government as cooperating witnesses and get a reduced prison sentence, but they still have to serve time in prison. Becoming a cooperating witness does not guarantee that there will be no prison time. The outcomes depend on the specific circumstances of a case, the witnesses’ individual circumstances, and the sentencing judge’s perspective.

HOW DOES COOPERATING WORK?

Defendants, targets, and suspects in a criminal matter often offer up information about others involved in criminal conduct as a way to reduce their sentence exposure.

Cooperation is not always available in every criminal case, nor does it always make the most sense. Each case is unique, and people deliberating about becoming a cooperating witness need to consult with competent legal counsel. There are real potential consequences to cooperation that people must carefully consider before agreeing to cooperate. Becoming a cooperating witness is a serious matter.

Cooperation can be a way for some people who are willing to accept its risks and accept the danger of pointing the Government out to someone else to reduce their time. But it’s not necessarily a get-out-of-jail-free card, and it’s not an easy thing to do.

In most judicial districts, a person will have to agree to plead guilty first before becoming a cooperating witness. In fact, it would be odd for the government to agree to work with someone as a cooperating witness when they are still fighting their own case against prosecutors or disputing the prosecutor’s facts against them.

Bottom line, a person trying to benefit from cooperation will most likely have to agree to plead guilty first.

Also, people need to realize that cooperation is not a get-out-of-jail-free card. In some cases, if someone cooperates and helps prosecutors apprehend or convict someone else, they are likely to get a significant sentencing reduction. Depending on how much of a reduction the sentencing judge grants, the cooperator may avoid prison altogether. 

In other parts, working with law enforcement agents may only get the cooperating witness a small sentence reduction, 

There is no uniform policy on cooperation outcomes across all federal judicial districts across the country.

Another thing to keep in mind is that a person’s cooperation credit might depend on the prosecution’s success in convicting others. This may sound unfair. However, there is no guarantee that a cooperating witness will get any credit at all, even if they do everything in their power. There are many reported cases where despite best efforts, a person is not able to help prosecutors charge or convict a target or suspect. When that happens, they won’t get cooperation credit. 

WHAT HAPPENS IF THE JURY DOES NOT BELIEVE A COOPERATING WITNESS?

Sometimes, the cooperating witness’ testimony is rejected by some jurors when called to testify at the criminal trial. This is a risk prosecutors take when accepting someone as a cooperating witness and calling them to the witness stand. For this reason, sometimes cooperating witnesses work with law enforcement before the trial but do not get called to testify if prosecutors have concerns about their credibility. 

That has been the dynamic in the Operation Varsity Blues prosecution. In that case, Rick Singer was the alleged mastermind of the college admissions saga who agreed to cooperate with the government. As such, Singer wore a wire and recorded many conversations with parents who later became defendants. Prosecutors used those recorded conversations as evidence against the people recorded. 

As far as using Singer at trial, however, prosecutors have chosen not to call Singer as a trial witness due to significant concerns about his credibility before the jury. 

When prosecutors decide to call cooperating witnesses to testify at a hearing or trial, they must carefully prepare the witnesses in advance. Prosecutors try at all costs to avoid a situation where a cooperating witness veers off script and gives unhelpful answers. Their biggest fear? They fear that a cooperating witness would testify on the witness stand about facts they never mentioned to prosecutors during debriefings.

Regardless, juries may view cooperating witnesses with suspicion because they have a personal interest in helping prosecutors convict someone. In white-collar cases especially, jurors view cooperating witnesses with suspicion. 

So, a prosecutor whose case hinges entirely on the testimony of a cooperating witness would do well to present corroborating evidence. Prosecutors often present multiple cooperating witnesses in case there is an issue with another cooperator. That provides insurance if a cooperating witness has a meltdown on the witness stand. 

Cooperating witnesses have to be able to withstand cross-examination from defense counsel, which not all cooperating witnesses are able to do. 

Jurors can be very skeptical when a person has something to gain and testifies in the hopes of a more lenient sentence. They understand that cooperating witnesses have a lot at stake, which can influence them to shade the truth.

Prosecutors are responsible for a cooperating witness’ testimony to make sure that it is in keeping with the evidence in the case. They are also responsible for guarding witness exaggerations or fabrications.

  

HOW MUCH SENTENCE REDUCTION CAN A COOPERATING WITNESS GET?

The sentencing judge has broad discretion to provide a cooperating witness with a sentence reduction or downward departure.

CONCLUSION

Cooperation helps many criminal defendants avoid or reduce their prison time when this option is available to them. Becoming a cooperating witness can make sense for some people, but it is not an option for everyone and does not always make sense. People who do not understand the risks and uncertainties are not good candidates. 

People who are not willing to commit to telling the truth and sharing everything they know with law enforcement are not good candidates for the role of a cooperating witness.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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