Amicus Curiae Brief — Bannister v. Illinois

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p CP RICE OF YES CLERK

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IN THE

Supreme Court of the Anited States

o<—>—->--_

JAMES BANNISTER,

Petitioner,

ILLINOIS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

BRIEF OF THE CENTER ON THE ADMINISTRATION

OF CRIMINAL LAW AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

ANTHONY S. BARKOW JOSEPH M. MCLAUGHLIN

DAVID B. EDWARDS Counsel of Record

CENTER ON THE ADMINISTRATION AGNES DUNOGUE

OF CRIMINAL LAW DEVIN F. RYAN

139 MacDougal Street THEODORE R. DEBONIS

New York, New York 10012 HIRAL D. MEHTA

(212) 998-6612 SIMPSON THACHER

& BARTLETT LLP

425 Lexington Avenue

New York, New York 10017

(212) 455-2000

jmclaughiin@stblaw.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .................0000005.

SUMMARY OF THE ARGUMENT..............0.00000.... 2

PAI I cee ocean teane sn nescacvesssassa eevee eecnees 4

I. CONSISTENCY PROVISIONS

UNDERMINE THE SAFEGUARDS PUT

IN PLACE TO MITIGATE THE RISKS

AND CHALLENGES POSED BY

COOPERATOR TESTIMONY .........000.0000.00... 4

A Plea Agreements Typically Use

Truth-Telling Provisions .................... 6

B. Consistency Provisions Are

Inherently in Tension with Truth-

Telling Provisions in Plea

PUT OCIIICUIEG ogc as vesexconsecsssnenseesenccaxavecds,

C Consistency Provisions Undermine

Other Fundamental Safeguards Of

Our Judicial System ......................05.. 9

1]

IT. ONLY AN APPROACH TO

COOPERATOR TESTIMONY WHICH

INSISTS EXCLUSIVELY UPON

TRUTH SERVES THE INTEREST OF

II sels s ca cs vacen ssc steceueceosaueiaveqsconcseaenee ene

CONCLUSION.......... | 16

ill

TABLE OF CITED AUTHORITIES

Page(s)

Cases

Bischel v. United States, 32 F.3d 259 (7th

Cir. 1994) ............ | a Saou a es 6

California v. Green, 399 U.S. 149 (1970) ................ Q

Charbonneau v. State, 904 A.2d 295 (Del.

a cuuasundaxennnsneass 6

Commonwealth of N. Mariana Islands v.

Bowie, 243 F.3d 1109 (9th Cir. 2001) .......0...00..... 5

Commonwealth v. Clampa, 547 N.E.2d

314 (Mass. 1989).................0.0008. ch ce 6

Commonwealth v. Miller. 819 A.2d 504

oc cpenaccvannas 6

Gardner v. Florida. 430 U.S. 349 (1977)................. 3

Grav v. Netherland, 518 U.S. 152 (1996) ....000.000..... 3

Hodge v. United States, 554 F.3d 372 (3d

ionic ck cwaenscsece CUR ened 6

McHenry Sav. Bank v. Autoworks of

Wauconda, Inc., 924 N.E.2d 1197 (I.

No vesnuwaccacnsneciacsee 7.8

People v. Bannister, 923 N.E.2d 244, 253

ne cucacsucemuaueaumnce g

People v. Evans, 174 I11.2d 320 (Il. 1996).............. 7

1V

People v. Fauber, 831 P.2d 249 (Cal.

+ 5 SERPs an ang POUT nee nL 6

People v. Rosenblum, 218 A.D.2d 823

(N.Y. App. Div. 1995) ..0..........ccccccccssseessccececessceeee 6

Pucket v. United States, 129 S.Ct. 1423

SN tcc Ate ee on 7

Sessions v. State, 890 P.2d 792 (Nev.

| ANNE Me cia sn bina Bi a pelts oe Dem Reeled nein eiah 6

State Farm Mut. Auto. Ins. Co. v.

Schmitt, 419 N.E.2d 601 (Ill. App. Ct.

PE he a eer 8

State v. Bolden, 979 S.W.2d 587 (Tenn.

| eon MRED ae RO RAR est Ae eee Oe G

State v. Marshall, 690 A.2d 1 (N.J. 1997)............... G6

State v. O'Connor, 378 N.W.2d 248 (S.D.

| Sa Re EY AGEN A A ...5! le Ow A ee 6

State v. Rivest, 316 N.W.2d 395 (Wis.

Le eT enti ee je 5 ah ee Neen MAR a 6

Stone v. Powell, 428 U.S. 465 (1976)....................... 2

United States v. Crisp, 817 F.2d 256 (4th

ee yj Eee coh 08 9.0.09 (ee ae ED FET) 6

United States v. Cruz-Mercado, 360 F.3d

Oe ae, De. es a ee re 6

United States v. Dennis, 183 F.2d 201 (2d

ae || Sten bt Maanctanen eek! Aten ee A, 4

United States v. E]-Gheur, 201 F.3d 90

ee EE isc ee orn 6

United States v. Floyd, 1 F.3d 867 (9th

ee EN reer ee nee nen en omer ote Set = = 6

United States v. Hartwell, 448 F.3d 707

Ce ee ee eee. J ccdoewexdaansaces 6

Other Authorities

Bella M. DePaulo et al., The Accuracy-

Confidence Correlation in the Detection

of Deception, 1 Personality & Soc.

Psychol. Rev. 346 (1997) ................ccccssccssseoseeenes 14

Ellen Yaroshefsky, Cooperation with

Federal Prosecutors: Experiences of

Truth Telling and Embellishment, 68

Fordham L. Rev. 917 (1999)... cece. oe e-

Federal Public Defender’s Office. Western

District of New York, available at

http://nyw.fd.org/cja/plea.pdf .........ccc ccc eeecceeeee ee 7

George C. Harris, Testimony for Sale: The

Law and Ethics of Snitches and

Experts, 28 Pepp. L. Rev. 1 (2000)..........0000000... 11

Northwestern University School of Law

Center on Wrongful Convictions, The

Snitch Syatewi TIO) 00... .cccccevcsscesoesseccscevececsasiss 13

R. Michael Cassidy, “Soft Words Of

Hope:” Gigho, Accomplice Witnesses,

and the Problem of Implied

Inducements, 98 Nw. U. L. Rev. 1129

oo ROME oR sey aap Oia mR IPaA OA Der MSS nea ST Se aA 1]

Vi

Saul M. Kassin, Human Judges of Truth,

Deception, and Credibility: Confident

but Erroneous, 23 Cardozo L. Rev. 809

Nee a cccansiecancovsnecennnsee

Stephen S. Trott, Words of Warning for

Prosecutors Using Criminal as

Witnesses, 47 Hastings L.J. 1381

nn cenunceccececeecsceceerss

Steven M. Cohen, What Is True?

Perspectives of a Former Prosecutor, 23

Cardozo L. Rev. 817 (2002) ...........00c.cc.cceeeeee

United States Attorney's Manual,

Sections 9-27.600, 9-27.630.......0.0.0.ccccc eee e eee

Pursuant to Rule 37.2 of the Rules of this Court, the

Center on the Administration of Criminal Law at New

York University School of Law (“The Center” or

‘“Amicus’’), with the consent of all parties, respectfully

submits this brief of amicus curiae in support of Petitioner

James Bannister. '

INTEREST OF AMICUS CURIAE

The Center on the Administration of Criminal Law

is dedicated to defining good government practices in

criminal prosecutions through academic research, litigation,

and participation in the formulation of public policy.

Although prosecutorial discretion is a central feature of

criminal enforcement at all levels of government, there is a

dearth of scholarly attention as to how prosecutors actually

exercise their discretion, how they should exercise their

discretion, and what mechanisms could be employed to

improve prosecutorial decision-making. The Center’s

litigation program aims to bring the Center’s empirical

research and experience with criminal justice and

prosecution practices to bear in important criminal justice

cases in state and federal courts, at all levels. The Center

focuses on cases in which the exercise of prosecutorial

Counsel for all parties received notice at least 10 days prior to

the due date of amicus curiae’s intention to file this brief. The

parties consented to the filing of this brief, and letters

reflecting such consent have been filed with the Clerk. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than amicus curiae, its members, or its counsel made a

monetary contribution to the preparation or submission of this

bricf.

discretion raises significant substantive legal issues and

files briefs in support of defendants and the government.

The Center files this amicus brief out of concern

that the decision of a deeply-divided I[Ilinois Supreme Court

in People v. Bannister, upholding the use of so-called

“consistency provisions” in plea agreements, is

incompatible with the fair administration of justice, for the

reasons Set forth :.erein.

SUMMARY OF THE ARGUMENT

“The ‘ultimate goal’ of the criminal justice system

is ‘truth and justice.’” Stone v. Powell, 428 U.S. 465, 523

(1976). The use of “consistency provisions” in plea

agreements—which require cooperating witnesses to testify

consistently with their pre-trial statements in order to obtain

the benefit of immunity or the possibility of a reduced

charge or sentence—undermines this overarching goal.

Petitioner’s brief argues that consistency provisions

in plea agreements contravene this Court’s Due Process

jurisprudence by interfering with the witness’s oath to tell

the whole truth, and by impeding the ability of the jury to

determine the truth for itself. (Pet. Br. 19.) Amicus

submits this brief, in support of Petitioner, to explain

further how the use of consistency provisions subverts the

search for truth.

Although the testimony of an accomplice-turned-

cooperator ts often crucial to the prosecution of a case, it

also presents the risk that it is untruthful and solely the

product of the cooperator’s strong incentive to obtain

leniency from the government. Recognizing both the

importance and challenges of cooperator testimony, our

legal system has put in place a number of measures to seek

3

to minimize the inherent issues posed by reliance on

‘cooperator testimony. Consistency provisions serve only to

undermine such safeguards. First, consistency provisions

are necessarily in tension with truth-telling provisions,

which are typically included in plea agreements. Under

well-established principles of contract interpretation, a

consistency provision must be ascribed meaning and

significance, within the context of a plea agreement, that is

separate and apart from any truth-telling provisions

contained in the same agreement. Thus, the only

independent effect and meaning that a_ consistency

provision may have within a plea agreement ts to compel a

cooperating witness to testify in a way that differs from the

testimony he or she otherwise would provide if his or her

plea agreement contained only standard provisions

requiring truthful testimony. Moreover, by pre-determining

the content of a witness’s testimony based on a

prosecutor’s own evaluation of the truthfulness of those

statements, consistency provisions also run counter to a

witness’s Oath to tell the truth and the role of a neutral fact-

finder as the sole determiner of the truth. Thus, consistency

provisions undermine ““‘the truth-seeking function of

trials.”” Gray v. Netherland, 518 U.S. 152, 185 (1996)

(quoting Gardner v. Florida, 430 U.S. 349, 360 (1977)).

Only an approach to cooperator testimony that

solely requires and emphasizes truth serves the interest of

justice. Research confirms the challenges presented by

cooperating witnesses—regarding the incentive and

potential ability of cooperators to embellish or even

fabricate truth, as well as the difficulties in detecting such

deception. Even a prosecutor’s ethical duties, and good-

faith belief that a cooperator who testifies “consistently” ts

4

testifying ‘truthfully,’ cannot counterbalance _ the

ineluctable negative effects of consistency provisions.

The Center respectfully submits that the petition for

certiorari should be granted because judicial sanction of

consistency provisions—as the IJlinois Supreme Court has

granted in this case—will weaken key tenets central to the

fair administration of justice.

ARGUMENT

I. CONSISTENCY PROVISIONS UNDERMINE

THE SAFEGUARDS PUT IN PLACE TO

MITIGATE THE RISKS AND CHALLENGES

POSED BY COOPERATOR TESTIMONY

“{C]Jourts have countenanced the use of informers

from time immemorial [because] it is usually necessary to

rely upon [informers] or cooperators.” United States v.

Dennis, 183 F.2d 201, 224 (2d Cir. 1950). Cooperators,

especially when corroborated by other evidence, are an

essential part of the criminal justice system and often are

invaluable—even necessary—for the prosecution of a case.

For example, the United States Attorney’s Manual

(“USAM”) notes that: “In many cases, it may be important

to the success of an investigation or prosecution to obtain

the testimonial or other cooperation of a person who is

himself/herself implicated in the criminal conduct being

investigated or prosecuted.” USAM_ 9-27.600(B)(1).

However, that cooperator testimony is only acceptable to

the extent that it is true and, as the studies discussed below

illustrate, deception may be difficult to detect.

The potential risks and challenges posed by

cooperator testimony—which is the result of a bargain for

leniency—are well-recognized. See Commonwealth of N.

Mariana Islands v. Bowie, 243 F.3d 1109, 1123-24 (9th

Cir. 2001) (noting that “[oJur system long ago recognized

and embraced” the “kind of favoritism” granted to

cooperators-—who “purchase leniency from the government

by offering testimony in return for immunity, or in return

for reduced incarceration” —because “given our strict and

demanding, constitutional mandates and rules of evidence,

not to do so would insulate many vile and dangerous

outlaws from the reach of the law,” but further

acknowledging that “because of the perverse and mercurial

nature of the devils with whom the criminal justice system

has chosen to deal, each contract for testimony ts fraught

with the real peril that the proffered testimony will not be

truthful, but simply factually contrived to ‘get’ a target of

sufficient interest to induce concessions from the

government’).

In light of the often critical importance of the

testimony of cooperators to the prosecution of a case, and

the concomitant risks such reliance may pose, our legal

system has a number of safeguards that aim to minimize the

potential for untruthful testimony. Plea agreements

typically include and are conditioned upon the requirement

that the defendant or cooperator testify truthfully and

completely. This requirement furthers the testimonial oath

to tell the truth. Moreover, the cooperator is subjected to

cross-examination. In addition, closing arguments may be

made, and jury instructions may be provided, that identify

the possibility of self-interest. And, ultimately, the

determination of a witness’s credibility, and the assessment

of the weight given his or her testimony, is left solely to the

judgment of a neutral fact-finder. Consistency provisions

are inherently in tension with these safeguards, and thereby

undermine the truth-seeking function of our legal system

A. Plea Agreements Typically Use Truth-

Telling Provisions

“The government has an obligation to ensure that

cooperating witnesses testify truthfully.” United States v

Hartwell, 448 F.3d 707, 719 (4th Cir. 2006). In line with

this obligation, cooperation agreements are typically

conditioned upon standard truth-telling provisions requiring

the defendant or cooperating witness “to testify truthfully

and completcly before the grand jury and at any subsequent

trials.” Bischel v. United States, 32 F.3d 259, 261 (7th Cir.

1994) (noting that the plea agreement at issue included this

“standard language”); see also Hodge v. United States, 554

F.3d 372, 374 (3d Cir. 2009) (discussing a plea agreement

conditioned upon truthful, complete, and accurate

testimony); accord United States v. Cruz-Mercado, 360

F.3d 30, 37 (Ist Cir. 2004); United States v. El-Gheur, 201

F.3d 90, 92 (2d Cir. 2000); United States v. Floyd, | F.3d

867, 868 (9th Cir. 1993); United States v. Crisp, 817 F.2d

256, 258 (4th Cir. 1987); Charbonneau v. State, 904 A.2d

295, 302 (Del. 2006); Commonwealth v. Miller, 819 A.2d

504, 521 (Pa. 2002); State v. Bolden, 979 S.W.2d 587, 591

(Tenn. 1998): State v. Marshall, 690 A.2d 1, 38 (N_J.

1997); Sessions v. State, 890 P.2d 792, 795 (Nev. 1995):

People v. Rosenblum, 218 A.D.2d 823 (N.Y. App. Div.

1995); People v. Fauber, 831 P.2d 249, 264 (Cal. 1992);

Commonwealth, vy. Ciampa, 547 N.E.2d 314, 319 (Mass

1989): State v. O'Connor, 378 N.W.2d 248, 252 (S.D

1985); State v. Rivest, 316 N.W.2d 395, 400 (Wis. 1982)

furthermore, Section 9-27.630 of the United States

Attorney’s Manual provides that, “|t]o further encourage

full disclosure by the witness, it should be made clear in the

apreement that the ypovernment’s forbearance — trom

prosecution is conditioned upon the witness’s testimony or

production of information being complete and truthful, and

that failure to testify truthfully may result in a perjury

prosecution.” USAM 9-27.630.° Perhaps unsurprisingly,

therefore, the USAM does not sanction — or even refer to

using consistency provisions in plea agreements.

B. Consistency Provisions Are Inherently in

Tension with Truth-Telling Provisions in

Plea Agreements

Plea agreements are essentially contracts and should

be construed accordingly. See Pucket v. United States, \29

S.Ct. 1423, 1430 (2009); see also People v. Evans, 174

H.2d 320, 327 (Il. 1996) (finding questions related to

neyotiated plea agreements “appropriate for the application

of contract law principles”). The primary goal of contract

interpretation is to give effect to the parties’ intent.

McHenry Sav. Bank v. Autoworks of Wauconda, Inc., 924

N.E.2d 1197, 1205 (Ill. App. Ct. 2010) (citation omitted).

When construing the terms of a contract, it 1s “presumed d]

that cach contractual provision was inserted deliberately

and for a purpose consistent with the parties’ intent.” /d.

“Meaning and effect are to be given to all terms and

provisions of a contract” because it 1s presumed that

“language was not employed idly.” State arm Mut. Auto

Ins. Co. v. Schmitt, 419 N.t.2d 601, 603 (IL App. Ct

See also Federal Public Detender’s Office, Western District of

New York, available at bitp://nyw fd orp/cjya/plea.pdt

(example of a federal plea agreement form containing truth

telling provisions but no consistency provision) (last visited

July 27, 2010)

1981). Therefore, a contract should be read in a manner

that gives effect to all the provisions of the contract.

McHenry Sav. Bank, 924 N.E.2d at 1205. Under these

well-established principles of contract interpretation, a

consistency provision must be ascribed meaning and

significance, within the context of a plea agreement, that 1s

separate and apart from any truth-telling provisions

contained in the same agreement. Any other interpretation

would improperly write out the consistency provision from

the plea agreement.

Here, the plea agreement that the cooperator

Michael Johnson entered into required him to “testify

truthfully in all matters regarding the 1“ Degree Murders of

Dan Williams and Thomas Kaufman” but also required that

“{sJuch truthful testimony shal/ be consistent with Michael

Johnson's post-arrest statements.” (Pet. App. O8A

(emphasis added).) Under well-established principles of

contract interpretation, the provision requiring that Mr.

Johnson's testimony be “consistent” with his post-arrest

statements must be understood to have meaning and effect

that is different from the provision requiring that Mr.

Johnson “testify truthfully in all matters regarding the 1“

Degree Murders of Dan Williams and Thomas Kaufman.”

Courts must ascribe independent meaning and significance

to this separate consistency provision. While the truth-

seeking function of the criminal justice system 1s advanced

by the provision requiring that a cooperator such as Mr.

Johnson testify truthfully, the consistency provision

conflicts with and negatively affects the truth-seeking

function. If a cooperator, such as Mr. Johnson, is presented

with a choice between testifying truthfully at tnal or

testifying consistently with his post-arrest statements—or,

in Mr. Johnson’s case, only certain of his post-arrest

statements—he will be incentivized to testify consistently

in order to appear to comply with the terms of his plea

agreement and obtain the considerable benefit of his

bargain, even if such testimony is false. Thus, the

consistency provision thwarts the truth-seeking function of

the criminal justice system.

Moreover, the mere disclosure at trial of a

consistency provision contained in a plea agreement ts not

sufficient to counteract these deleterious effects and justify

the use of such a provision. Disclosing the consistency

provision to the fact-finder has no effect on the

cooperator’s incentive to provide testimony that ts

consistent with his or her pnor statements, yet false. And

even if cross-examination might sometimes expose false

cooperator testimony, the fact that consistency provisions

serve no beneficial purpose to the criminal justice system's

truth-seeking efforts means that they should not be

condoned.

be Consistency Provisions Undermine Other

Fundamental Safeguards Of Our Judicial

System

By binding cooperators to certain — pre-tnal

statements that may be false, consistency provisions

weaken fundamental safeguards of our legal system. As

the Supreme Court of Illinots recognized in this case, “[o]ur

legal system tests a witness’ credibility through cross-

examination and leaves the determination of that credibility

to the finder of fact.” People v. Bannister, 923 N.E.2d 244,

253 (Ill. 2009). Also crucial to the fact-finding process at

tnal, and to the efficacy of cross-examination itself. is a

witness's oath to tell the truth. See California v. Green.

399 U.S. 149, 158 (1970) (noting that requiring a witness to

10

give his statements under oath “impress[es] him with the

seriousness of the matter and guard[s] against the lie by the

possibility of a penalty for perjury” and further

emphasizing that cross-examination, under oath, is “the

greatest legal engine ever invented for the discovery of

truth”) (internal quotation marks omitted). Consistency

provisions, however, undermine the witness’s taking of an

oath to tell the truth. If the witness’s pnor, pre-trial

statements are in fact not truthful, a provision requiring him

or her to testify at trial consistently with those prior

Statements unavoidably conflicts with the witness’s oath

(and with the standard truth-telling provision § typically

included in a plea agreement). Thus, a consistency

provision provides an added incentive for and pressure on a

witness to testify falsely at tnal. Perhaps more subtly

pernicious, consistency provisions undermine the fact-

tinder’s rcie of evaluating a witness’s credibility. Such

provisions pre-limit the testimony a witness will give

before the fact-finder. Even a cooperator testifying

truthfully, but constrained by previous statements, will be

reluctant to provide supplementary truthful information at

trial for fear that a prosecutor could deem it inconsistent

and revoke the agreement. The safeguards put in place at

trial were not built to—and do not—avoid these

difficulties. Thus, consistency provisions subvert crucial

tenets of our legal system.

il. ONLY AN APPROACH TO COOPERATOR

TESTIMONY WHICH INSISTS

EXCLUSIVELY UPON TRUTH SERVES THE

INTEREST OF JUSTICE

A cooperator’s self-interested incentive to acquire

leniency, and to tailor facts to minimize his or her own

1]

culpability, motivates testimony that fits the prosecutor's

theory of the case and helps to convict someone else. See

George C. Harris, Testimony for Sale: The Law and Ethics

of Snitches and Experts, 28 Pepp. L. Rev. 1, 50 (2000)

(“Every defendant or target of an investigation knows that

her only possibility of making a deal with the government

for lenient treatment 1s a proffer of testimony helpful in

convicting another defendant or target.”): R. Michael

Cassidy, “Soff Words Of Hope:” Giglio. Accomplice

Witnesses, and the Problem of Implied Inducements, 98

Nw. U.L. Rev. 1129, 1140 (2004) (noting that prosecutors

report that “{a]ccomplice witnesses are very eager to please

the government, precisely because they perceive that their

future liberty and safety depend on it”).

There is always a risk that such testimony may not

be truthful. See Stephen S. Trott, Words of Warning for

Prosecutors Using Criminal as Witmesses, 47 Hastings L.J.

1381, 1383, 1432 (1996) (concluding that “using informers

is both central and extremely perilous to many

prosecutions” and explaining that one of the two principal

reasons prosecutors should be especially wary in using

informers is that “[c]riminals are likely to say and do

almost anything to get what they want, especially when

what they want ts to get out of trouble with the law”). In

some instances, as noted by one former Assistant United

States Attorney (“AUSA”) interviewed (along with a

number of others in a survey about the use of cooperator

testimony), ““[i]t is not that [the cooperator] thinks he’s

fabricating information[;] [h]e’s just eager to please.””

Ellen Yaroshefsky, Cooperation with Federal Prosecutors:

Experiences of Truth Telling and Embellishment, 68

Fordham L. Rev. 917, 943 (1999). As noted by another

former AUSA: “Many [cooperators] come in believing

12

This Is What They Want To Hear Time rather than This Is

What Happened Time. Thus, the last thing you want to do

is to feed them information because they will believe you

want them to parrot back that information.” /d. at 955. In

a particularly candid assessment, a former chief of the

Criminal Division in the United States Attorney's Office

for the Southern District of New York responded as follows

when asked whether he believed cooperators embellish the

truth:

All 1 know is that truth is elusive.

Everyone tells you things and people don't

even know if they are embellishing. The

greater the incentive structure, the greater

the risk of incriminating others. How much

do you really remember? Mistakes and

concurrences vary and now, if you tell them

to a partisan lawyer and it fits the theory, it

becomes frozen in the story because it ts

useful. The client is alert. His ears pick up

when he reveals certain facts that pique the

prosecutor or agent.

ld. at 953. Similarly, another former AUSA—who ts now

chief of staff to the New York Attorney General—

recounted that “most prosecutors candidly admit that they

are aware of instances in which cooperators have lied and

the lies have gone undetected long enough to have an

impact on the investigation.” Steven M. Cohen, What Is

True? Perspectives of a Former Prosecutor, 23 Cardozo L.

Rev. 817, 824 n.16 (2002). And, whatever its frequency,

studies illustrate that false cooperator testimony can have

profound consequences. A 2004 study by the Northwesterm

University Center on Wrongful Convictions found that of

the more than one-hundred death-row inmaies who have

13

been exonerated since 1973, 45.9% were initially convicted

at least in part on the testimony of cooperating witnesses.

See Northwestern University School of Law Center on

Wrongful Convictions, The Snitch System, 3 (2005).

The risk of untruthful testimony can be

compounded by the fact that “[a]ccomplices can

manipulate their versions of events without arousing much

suspicion precisely because they are immersed in the

details of the crime and know which aspects of the

enterprise are verifiable and which are not.” Cassidy,

supra, at 1140. Indeed, the more critical the role played by

cooperators in a case, the more difficult it may be to gauge

the cooperator’s truthfulness. As noted by a former AUS

“For obvious reasons, when there ts little information tn the

possession of (or available to) the prosecutor, the

defendant’s value as a cooperator increases. Unfortunately,

that very lack of evidence tends to make it much more

difficult to evaluate the veracity of the would-be

cooperator.”” Cohen, supra, at 822. In such situations, “the

prosecutor is forced to rely to a greater extent on his ‘gut

reaction’ than on tangible evidence. How successful are

prosecutors in relying on their ‘gut reactions’ when

assessing would-be cooperators? The answer ts unclear.”

Id. Thus, the use of cooperating witnesses “is laden with

risk.” /d.

Indeed, research demonstrates the difficulties in

detecting deception. See, e.g., Saul M. Kassin, Human

Judges of Truth, Deception, and Credibility: Confident but

Erroneous, 23 Cardozo L. Rev. 809, 809 (2002) (discussing

empirical research by social psychologists and noting that

based on dozens of studies the “compelling pattern

emerges” that “people are poor human lie detectors”)

(citing Bella M. DePaulo et al., The Accuracy-Confidence

16

CONCLUSION

For the reasons stated above, the petition for a wri

of certiorari should be granted.

Respectfully submitted,

ANTHONY S. BARKOW JOSEPH M. MCLAUGHLIN

DAVID B. EDWARDS Counsel of Record

CENTER ON THE AGNES DUNOGUE

ADMINISTRATION OF DEVIN F. RYAN

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Counsel for Amicus Curiae

July 28, 2010

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