Several weeks ago, in United States v. DiMasi, et al., No. 09-cr-10166-MLW, a co-defendant agreed to cooperate with the government and provide testimony in exchange for a more lenient sentence less than six weeks before the scheduled start of trial. In a novel, and innovative challenge, Mr. DiMasi’s trial attorney immediately attempted to preclude the cooperator’s anticipated testimony. While counsel should be credited for trying, the result was foregone and his challenge failed. This was because the government is generally free to make their case however they choose to make it (within the Rules of Evidence) and to cut deals with anyone whom they wish to cut deals with (within the Code[s] of Professional Responsibility). This does not mean the government’s deal-making should not be subject to strict scrutiny. In the federal system, where cooperation deals are often made, the judge may in his or her discretion instruct the jury that a cooperating defendant’s testimony should be viewed by them with "particular caution". See, First Circuit Pattern Criminal Jury Instruction 2.07, or that the testimony of an informant "must be examined and weighed by the jury with greater care than a witness" who may not be motivated by money or an effort to escape punishment for his or her own misdeeds. See, Federal Jury Instructions s. 15.02, Federal Judicial Center. Still, the bottom line is there is nothing a judge can do to prevent pre-trial deal-making by the government in order to bolster their underlying case. However, when this does happen, I believe the related jury instruction should not be discretionary, but rather, mandatory. Moreover, I believe it should contain stronger cautions than are currently given and include similar language to that approved in United States v. Hoffa, 385 U.S. 293 (1966), where the jury was instructed that "all evidence from a witness whose self-interest is shown....should be considered with caution and weighed with care", and further, should make direct reference to the fact that cooperating witnesses and paid informants may have reasons to exaggerate, or even fabricate, evidence regarding the supposed actions of others in order to help themselves or better their own situation(s). See also generally, United States v. Newton, 891 F2d. 944 (1st cir 1989) and United States v. Cresta, 825 F. 2d 538 (1st Cir 1987).
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