# Amicus Curiae Brief — Bannister v. Illinois

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2155%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1061

## Text

| y) [—“SupsteGertus. 7]
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p CP RICE OF YES CLERK

ee

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
CRIMINAL LAW THEODORE R. DEBONIS
139 MACDOUGAL STREET HIRAL D. MEHTA

New York, NY 10012 SIMPSON THACHER &
(212) 998-6612 BARTLETT LLP

425 Lexington Avenue
New York, NY 10017
(212) 455-2000
jymclaughlin@stblaw.com

Counsel for Amicus Curiae

July 28, 2010

RECORD PRESS, INC., 229 West 36th Street, N.Y. 10018—27319—(212) 619-4949

www. recordpress com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2155%3A4. Public record. Not legal advice.