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173

MINIMIZING THE RISK OF INJUSTICE INCOOPERATION AGREEMENTS

DAVID LEIMBACH*

This article explores many of the arguments for and against the use of plea-bargaining

in exchange for testimony. From the perspective of achieving justice, allowing

cooperation agreements can be risky especially because they may place an undue

pressure on the part of a co-conspirator to commit perjury in order to secure a

desirable bargain. At the same time, cooperation agreements currently serve an

important role in the operation of our judicial system. This article concludes that a per

se prohibition on testimony given in exchange for a plea-bargain is unnecessary and

instead describes a set of safeguards, which collectively mitigate the risks of such

arrangements to a sufficient degree.

I. INTRODUCTION .......................................................................................174II. HISTORY................................................................................................174III.THE PRO/CON DEBATE ...........................................................................175

A. Benefits .......................................................................................1761. Efficiency..............................................................................1762. Avoiding Uncertainty at Trial..............................................1763. An Essential Prosecutorial Tool ..........................................177

B. Risks ............................................................................................1781. Principle of Due Desert ........................................................1782. Unduly Coercive...................................................................1793. Incites Perjury.......................................................................179

IV.A STANDARD FOR PERMISSIBILITY........................................................180A. Disclosure and Cross-Examination ...........................................180B. Jury Instruction ...........................................................................180C. Corroboration..............................................................................181D. Strictly Limited Contingency ....................................................181E. Proportionality Condition ..........................................................182

V. CONCLUSION ........................................................................................182

* David Leimbach is a member of the class of 2010 at Dartmouth College double majoring in

Mathematics and Philosophy.

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174 THE DARTMOUTH LAW JOURNAL Vol. VII:2

I. INTRODUCTION

Although plea-bargaining the process by which defendants pleadguilty in exchange for some form of leniency agreement has been the

subject of much controversy among academics, it occupies a fundamental

role in the current operation of our judicial system. In our current system

approximately 90% of cases end with a guilty plea and a substantial

proportion of these guilty please arise out of plea-bargains.1 A particularly

interesting subset of plea-bargains, from a theoretical point of view, are

those offered in exchange for testimony. These cases raise important

questions beyond the traditional arguments for and against plea-bargaining

because they involve the rights of the party to be testified against and often

include reduced punishments for individuals culpable of truly heinous

crimes.

In this paper I present and respond to some of the most prominentarguments against the states use of plea-bargaining in exchange for

testimony. I conclude that a per se prohibition on testimony given in

exchange for a plea-bargain is unnecessary and instead propose a set of

safeguards designed to mitigate the risks of such arrangements. The court

should consider the satisfaction of these criteria in determining whether the

use of a testimony obtained in exchange for a plea-bargain is permissible in

a particular case.

II. HISTORY

The practice of testifying in exchange for leniency has roots in early

common law when English courts would allow accomplices to accuse their

co-conspirators and would offer a pardon upon conviction. In these early

cases, the incentive to lie was extreme because a failure to convict the co-

conspirator usually resulted in execution for the original defendant.2 The

practice fell out of favor due to the likelihood of perjury and was replaced

with the practice of turning Kings evidence.3 The American legal system

inherited this tradition. In 1878, the Supreme Court ruled on The Whiskey

Cases and officially recognized the prosecutors unilateral right to enter

into cooperation agreements,4 and in 1892, the Court handed down a ruling

permitting the use of accomplice testimony despite the fact that the

1 Yvette A. Beeman, Accomplice Testimony Under Contingent Plea Agreements, 72CORNELL L. REV. 800 (1987).

2 Spencer Martinez, Bargaining for Testimony: Bias of Witnesses Who Testify in Exchange

for Leniency, 47 Clev. St. L. Rev. 141, 143 (1999).3 Supra note 1 at 800-801.4 99 U.S. 594, 599 (1878).

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Summer 2009 COOPERATION AGREEMENTS 175

accomplice was an interested party.5 Since then, cooperation agreements

have played a significant role in the American judicial system,6 including

agreements that have been at least partially contingent on the results of the

trial after the testimony was already given.7

The debate over plea-agreements in exchange for testimony flared in

1998 as a result of a holding in United States v. Singleton. The court

convicted a Kansas woman for money laundering and conspiracy to

distribute cocaine after hearing testimony from an accomplice who

received leniency. The Tenth Circuit Court of Appeals overturned the

decision on the grounds that the prosecutions cooperation agreement

violated a federal bribery statute. On rehearing en banc, the Tenth Circuit

vacated the Singleton I decision and supported the original ruling of the

district court.8 Nevertheless, Singleton I sparked a wave of appeals and a

series of opinions weighing in on the issue of plea-bargaining in exchange

for testimony.

III. THE PRO/CON DEBATE

Plea-bargaining in exchange for testimony is a particularly contentious

part of an already thorny issue. As a result, there is a sizable back-and-forth

literature discussing the advantages and disadvantages of this practice. By

examining these arguments carefully, we hope to better understand what

we would lose by implementing a per se prohibition on such arrangements

and what we risk by allowing them to continue. The goal of this paper is to

offer a path that allows us to both capture as many benefits and avoid as

many risks as possible.

5 See Benson v. United States, 146 U.S. 325, 337 (1892).6 See United States v. Santabello, 404 U.S. 257, 260 (1971) (stating that plea-bargaining is

an essential component of the administration of justice); United States v. Anderson, 654 F.2d

1264, 1268 (8th Cir. 1981) (holding that accomplice testimony may by itself sustain a conviction

without corroboration; United States v. Fitts, 635 F.2d 664, 667 (8th Cir. 1980); United States v.

Knight, 547 F.2d 75, 76 (8th Cir. 1976); Williams v. United States, 328 F.2d 256, 259 (8th Cir.

1964); United States v. Dailey, 759 F.2d 192 (1st Cir. 1985) (allowing at least partially contingent

cooperation agreements); United States v. Fallon, 776 F.2d 727, 729 (7th Cir. 1985) (alsoupholding contingent agreements).

7 See United States v. Dailey, 759 F.2d 192 (1st Cir. 1985); United States v. Fallon, 776 F.2d

727, 729 (7th Cir. 1985); United States v. Waterman, 732 F.2d 1527 (1984), vacated en banc, No.

83-2159 (8th Cir. Sept. 20, 1984), cert. denied, 471 U.S. 1065 (1985).8 United States v. Singleton, 165 F.3d 1297, 1298 (10th Cir. 1998).

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A. Benefits

1. Efficiency

One of the most basic and common arguments in favor of plea-

bargaining is that it saves an enormous amount of time and energy relative

to full jury trials. Chief Justice of the Supreme Court Warren Burger argued

in 1970 that a reduction in the number of cases settled by guilty pleas from

ninety percent to eighty percent would nearly double the required amount

of judicial manpower and facilities.9 Detractors of plea-bargaining,

however, have sought to refute the case pressure argument on several

grounds. Some scholars have simply questioned the empirical basis for the

caseload theory, arguing either that plea-bargains do not save as many

resources as claimed10 or that the system can and should adapt to the

increased capacity demands.11 Stephen Schulhofer has argued for bench

trials as a more just and nearly as efficient alternative to plea-bargaining. 12More abstractly, opponents may argue that administrative costs, at least by

themselves, are an insufficient justification for due process violations.13

2. Avoiding Uncertainty at Trial

Another argument used to defend plea-bargaining as a general practice

is that it avoids the uncertainty of trial a consequence that may often be in

the interests of both the defendant and the prosecutor.14 Plea-bargaining

allows prosecutors to avoid the risk of an acquittal, ensuring that the

defendant serves at least some time for his or her crime despite a weak

prosecutorial case. Likewise, plea-bargaining grants defendants some

control over their sentences and the ability to avoid unexpectedly harsh

sentences.

9 Warren E. Burger, The State of the Judiciary - 1970, 56 A.B.A. J. 929, 931 (1970).10 See Malcolm M. Feeley, The Process Is the Punishment, 186-87, 241 (1992) (in less

serious cases, a significant number of cases would result in a guilty plea even absent the plea-

bargaining process).11 See Nardulli, The Caseload Controversy and the Study of Criminal Courts, 70 J. CRJM. L.

& CRIMINOLOGY 89, 91-93 (1979).

12 Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037-1107 (1984).13 See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 647 (1974). The court found that

administrative convenience alone cannot suffice to validate due process violations.14 See Debra S. Emmelman, Trial by Plea Bargain: Case Settlement as a Product of

Recursive Decisionmaking, 30 LAW & SOCY REV. 335-360 (1996) (argues for the efficacy of

plea-bargaining compared to trial outcomes).

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3. An Essential Prosecutorial Tool

Although economy and predictability are advantages of plea-

bargaining in general, by far the most common argument for plea-bargainsoffered in exchange for testimony is that they are an essential prosecutorial

tool. Advocates of this method argue that the use of cooperation

agreements to encourage an accomplice to testify is fundamental to the

operation of our criminal justice system. It seems reasonable that co-

conspirators will often possess the most intimate knowledge of the crimes

for which a defendant is being prosecuted.15 Furthermore, because of the

nature of criminal activity, it seems likely that often a co-conspirator may

be the only witness capable of testifying about information crucial to the

prosecutions case.16 Given the risks and stigma associated with snitching

in the criminal world, it is unlikely that prosecutors would frequently find

much success in convincing a co-conspirator to testify against a defendant

without substantial incentive.17 The tactic of turning low value targetsinto witnesses against high-value targets is particularly instrumental in the

investigation and prosecution of organized crime and drug cases.18 These

factors likely played a considerable role in the Courts thinking when it

stated that no practice is more ingrained in our criminal justice system

than the practice of the government calling a witness who is an accessory to

the crime for which the defendant is charged and having that witness testify

under a plea bargain that promises him a reduced sentence. 19

Opponents to plea-bargaining in exchange for testimony may make

several arguments in response. They may argue that even without plea-

bargaining defendants may still assist state investigations in exchange for

leniency (for example, by helping locate a suspect or witness), such

cooperation should simply be inadmissible at trial. Indeed, in Singleton I

the court found that a defendant can substantially assist an investigation or

prosecution in myriad ways other than by testifying.20 Furthermore, the

15 United States v. Haese, 162 F.3d 366 (5th Cir. 1998) (in rejecting the reasoning in

Singleton I, the Court noted, frequently the most knowledgeable witnesses available to testify

about criminal activity are other co-conspirators).16 United States v. Reid, 19 F. Supp. 2d 534, 537 (E.D. Va. 1998) (there are situations where

those individuals may be the only credible witnesses of criminal activity and, without their

testimony, the government would not be able to obtain convictions).17 Id. It is naive to assume that most coconspirators would be so altruistic as to abandon

their own self-interest and testify for the very government that seeks a stiff sentence against them

without a bargain being made.

18 United States v. White, 27 F. Supp. 2d 646, 649 (E.D.N.C. 1998). Without suchtestimony, the government would be unable to enforce drug laws, prosecute organized crime

figures under RICO, or otherwise effectively proceed in the thousands of cases each year in

which it relies on witnesses who testify in return for leniency.19 United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987).20 United States v. Singleton, 144 F.3d 1355 (10th Cir. 1998).

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fact that the police and prosecutors have come to rely on cooperation

agreements does not, by itself, guarantee that they do not violate due

process rights.

B. Risks

1. Principle of Due Desert

There have been many instances of public outrage in response to plea

bargains that were perceived to be overly lenient. At least, however, in the

case of normal plea-bargaining the amount of bargain usually has some

connection to a prosecutors confidence in her case against the defendant;

in the case of plea-bargaining in exchange for testimony, defendants

against whom the state possesses a strong case may still receive very

lenient punishments as a result of the testimony they are willing to offer.

Such deals are likely to trigger a sense of repulsion because they seem toviolate the principle of due desert. One notorious example is that of the

mobster Sammy Gravano, who, after confessing to a total of nineteen

murders, received a heavily reduced sentence in exchange for testifying

against John Gotti.21 Justice requires that certain crimes receive certain

punishments, so the argument goes. In response, proponents of cooperation

agreements may argue that plea-bargaining represents the best chance at

achieving a broader justice. Ideally, each criminal would receive exactly

the punishment appropriate to the crime, but pragmatically cooperation

agreements allow us to punish a greater number of the worst criminals.

Unfortunately, this may not always be the case. A study issued by the

U.S. Sentencing Commission suggests that there exists a high degree of

disparity in sentencing when comparing the sentence received and the

crime committed. In nearly 40% of the drug trafficking conspiracies

studied, more culpable defendants received sentences shorter or equal to

those received by at least one less culpable defendant. In many of these

cases, the more culpable defendant received a reduced sentence in

exchange for assistance given to the prosecution.22 A related concern is that

the plea-bargaining system creates a revolving door effect and undermines

the legitimacy of the legal system as a whole because criminals know they

can receive light sentences as long as they are willing to give up

information on individuals deemed to be more valuable targets.

21 Paul H. Robinson & Michael T. Cahill, Law Without Justice, 77-78 (2006).22 Linda Drazga Maxfield & John H. Kramer, United States Sentencing Commission,

Substantial Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and

Practice 16 (1998).

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2. Unduly Coercive

Co-conspirators who receive plea-bargains in exchange for testimony

are often fairly unsympathetic characters. Nevertheless, we must be carefulto ask whether plea-bargains represent a violation of their due process

rights. In many respects, it is hard to imagine a more coercive environment

than the one created when a defendant is offered a plea-bargain, as there is

likely nothing of greater subjective value to a defendant facing charges than

a reduced sentence. Certain structural features of the system intensify this

coercion, such as the proliferation of mandatory minimum sentencing

provisions, which allow prosecutors to predict for defendants a fairly

determinate sentence should they be found guilty.23 Additionally, innocent

defendants, who are more likely to receive comparatively generous offers

(as a result of the weaker cases against them), tend to have the least faith in

the legal system (having been wrongly accused), and therefore may be

most likely to accept plea bargains in general. Proponents of plea-bargaining may respond that acceptance of the plea is ultimately in the

hands of the judge, whose task is to ensure that the bargain does not violate

the rights of the defendant.

3. Incites Perjury

One of the greatest and oldest concerns about the practice of

exchanging a reduced sentence for testimony is that it incites perjury. We

must worry whether co-conspirators, who are offered plea-bargains, are

under such intense coercion to accept the bargain that their due process

rights are violated. Presumably, however, the plea-bargainer at least has

his or her own self-interest in mind. Thus, we must doubly worry that the

co-conspirator will be coerced to lie on the stand and cause an innocent

third party to be convicted. Furthermore, as was argued in the Singleton

case, there appears to be an explicit asymmetry that advantages the

prosecutor by allowing her to offer plea agreements when the courts forbid

opposing attorneys from giving anything to fact witnesses in order to

encourage them to testify.24

Again, structural features are likely to exacerbate the problem: the

state is most willing to offer an accomplice a good deal in exchange for

23 Steven M. Cohen, Effective Screening For Truth Telling: Is it Possible? What is True?

Perspectives of a Former Prosecutor, 23 CARDOZO L. REV. 817, 819 (2002) (To most rationalcriminal defendantsthere is really no choice at all).

24 Sheila Creaton, Plea Agreements: Progressing the Fight against Crime or Bribing

Witnesses?, 5 SUFFOLK J. TRIAL & APP. ADV. 37. See also J. Richard Johnston, Judicial

Nullification: Denial of Equal Access to Witnesses Is Denial of Due Process, 28 ALBERTA L.

REV. 20 (2004).

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testimony in cases where the evidence against the defendant is weakest,

and therefore the testimony is most needed. The weakness of the case

against the defendant and the increase in the amount of leniency offered to

the accomplice both increase the likelihood that the accomplice will lie. Inresponse, proponents may argue that witness testimony is frequently not

disinterested. We cannot bar a witness from testifying every time he or she

has something to be gained by conviction. Rather, it is a matter for the jury

to decide. The question, then, is whether a jury can be reasonably expected

to sift through the potential lies of an accomplice testifying in exchange for

leniency.

IV. A STANDARD FOR PERMISSIBILITY

In the previous section, I showed that there are strong reasons to allow

testimony given in exchange for a plea-bargain and that there are strong

reasons to be suspicious of such testimony. I will now propose a set ofsafeguards, which will serve to minimize the risk of the harm that can come

from such testimony.

A. Disclosure and Cross-Examination

The single most effective way to ensure that a jury has the best chance

of correctly interpreting the testimony of a cooperating witness is by

requiring that all arrangements between the prosecution and the witness be

disclosed and by allowing the defense wide latitude in cross-examining the

witness, especially about the details of the cooperation agreement.25 This

transparency will allow for the defense to argue against the credibility of

the witness and to put pressure on the prosecution to produce sufficient

corroborating evidence.

B. Jury Instruction

Nevertheless, plea agreements can be complex and confusing, and

there is a significant risk that the jury will be too confused to reliably

determine the truthfulness of the testimony presented. To reduce the risk

that such confusion unduly benefits the prosecution, judges should provide

clear and careful instruction to the jury cautioning them to weigh the

witnesss testimony carefully and with extra scrutiny.26 InAlford v. United

25 See Giglio v. United States, 405 U.S. 150, 153-54 (1972) (the court ordered a new trial

because the prosecutor had no knowledge of, and therefore did not disclose during the trial, the

existence of a plea agreement between the government and witness).26 See United States v. Insana, 423 F.2d 1165, 1169 (2d Cir. 1970); United

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witnesss testimony on the stand must be materially consistent with his

statements at the time the bargain was proffered and (2) both statements

must be true. This last clause is particularly important; all plea agreements

should stipulate that perjury violates the agreement, thereby creating adisincentive for lying on the stand.30 Furthermore, the terms and conditions

of the agreement must be specific enough that the prosecution does not

hold an implicit power over the accomplice during his testimony that

encourages him to embellish in favor of the prosecution.

E. Proportionality Condition

Finally, the agreement must meet some kind of proportionality

standard weighing the culpability of the plea-bargainer against that of the

defendant. The prosecutor must perform a calculus of some kind, weighing

both his obligation to protect the community from dangerous individuals

and his obligation to seek justice. Furthermore, he or she must be thrifty; heor she must seek to minimize the loss of punishment sentenced to the

deserving accomplice. These stipulations are necessary to minimize

violations of our sense of due desert.

V. CONCLUSION

If these standards are met, the question safely shifts from the

admissibility of the testimony to the weight it should be given, which is

properly a question for the jury to settle.31 While there are risks associated

with cooperation agreements, the pros far outweigh the cons. For this

reason,we should implement strict measures to minimize the risks while

avoiding an all out ban on potentially valuable and crucial testimony from

countless cases.

30 See United States v. Dailey, 759 F.2d 192, 196 (1985) (suggesting all plea agreements

should stipulate that lying under oath violates agreement).31 See United States v. Kimble, 719 F. 1253, 1257 (5th Cir. 1983) (reasoning that weight of

testimony is question for jury).

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