November 20, 2018 | Lyle Carrera
Edited By: Anna Shinn
Since his appointment as Special Counsel for the United States Department of Justice, Robert Mueller has entered the dinner-table political vernacular of families across America. What was originally easily enough described as an investigation into “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”1 has evolved into a defining political saga for the Trump Administration. Dozens of individuals have been investigated or formally charged by Special Counsel Mueller and his team. Among the most well-known of these are such individuals as campaign adviser George Papadopoulos, attorneys Michael Cohen and Paul Manafort, former National Security Advisor Michael Flynn.
These four are some of, if not the most reported-on figures in the Special Counsel’s investigation— and for good reason. Because of their unique positions in the orbit of then-candidate Trump, each was quickly pegged by the media and, presumably, the tight-lipped team of Special Counsel Mueller, as an individual of interest to the probe. Each was charged with federal crimes ranging from making false statements (in the case of Papadopoulos)2 to conspiracy against the United States (for Manafort).3 And perhaps most importantly, each elected to plead guilty to a number of their charges with the understanding that they would cooperate with the government in any inquiries that are part of or stemming from the Mueller investigation and that this cooperation would incentivize the government to petition the judge for a reduced sentence in their own hearings.
This means that these individuals may soon become what are known as “accomplice witnesses”: witnesses who testify in their capacity as somebody involved in the crime allegedly committed by the defendant. Specifically, the government may ask these four and other supposed accomplices to “furnish to the Government all documents and other material” wherever “the government deems [such] cooperation relevant”.4 To be sure, this would require them to testify in front of any eventual jury as the government’s case enters the official legal record — whether such testimony is required in the jurisdiction they will themselves be tried in or in another court.5
Naturally, this presents a potential conflict of interest. As the Burger Court described in its decision in Cool v. United States, “an accomplice may have a special interest in testifying” insofar as they believe that their cooperation will reduce the severity of their eventual sentencing. That is to say, such a witness would be highly incentivized to merely testify, to supply knowledge that the government wants and believes they have, “thus casting doubt upon his veracity” due to this coerced interest.6 In fact, this doctrine has been present in jurisprudence as far back as 1909, when the Supreme Court wrote that “evidence of persons already convicted of the crime of conspiracy for which defendant is also indicted… is to be received with caution and suspicion, and is not entitled to the same credence as that given to ordinary witnesses.”7
In cases concerning accomplice witnesses, juries must be aware not only of the fact that the witness in question may be incentivized to give improper testimony but also of how they may approach the issue of their credibility. Many jurisdictions in the United States provide this information through a special instruction given to juries presented with such a witness. A model example of such an instruction can be found in the Pattern Jury Instructions for the United States Court of Appeals for the Eleventh Circuit:
You must consider some witnesses’ testimony with more caution than others. In this case, the Government has made a plea agreement with a Codefendant in exchange for [his or her] testimony. Such “plea bargaining,” as it’s called, provides for the possibility of a lesser sentence than the Codefendant would normally face. Plea bargaining is lawful and proper, and the rules of this court expressly provide for it. But a witness who hopes to gain more favorable treatment may have a reason to make a false statement in order to strike a good bargain with the Government. So while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the testimony of other witnesses. And the fact that a witness has pleaded guilty to an offense isn’t evidence of the guilt of any other person.8
There is much case law regarding what these instructions may and may not include or imply. For example, jury instructions for accomplices may not interfere with the allocation of the burden of proof. In Massachusetts, two defendants challenged their conviction on the basis of this instruction given to the jury regarding the testimony of two accomplice witnesses: “Each witness who takes the oath from [the judge] to tell the truth is presumed in the first instance to speak the truth…”9 In short, any testimony from those witnesses was believed to be true for the purposes of the case absent any questions raised by the defense regarding its reliability. The First Circuit Court of Appeals ruled that, in the absence of corroborating evidence for one of the defendants, this standard violated his rights by placing the burden of proof on him to present a sufficiently compelling reason to discount said testimony.10 This illustrates how both courts and the counsel making requests to said court (such as those to provide the aforementioned jury instructions) must walk a fine line so as to maintain the legitimacy of rulings.
A more stringent restriction on accomplice testimony is that, in some state-level jurisdictions, it must be corroborated to have any force in determining a defendant’s guilt. For example, the State of Maryland requires such corroboration because, otherwise, a defendant may be effectively convicted by a witness who provides false testimony “to gratify his malice or to shield himself from punishment, or in the hope of receiving clemency by turning State’s evidence.”11 However, in a case of a conspiratorial nature, it may be that the only relevant evidence that the prosecution could obtain would be obtained directly from the conspirators. By the same logic that produced these higher evidentiary standards, we might conclude that such evidence might be tainted due to the “incentive to perform” experienced by accomplices.
In fact, such an occurrence is empirically not uncommon. Of the 330 American criminal cases where a convicted defendant was later exonerated by DNA evidence – i.e. where defendants were falsely convicted – 80 (24% of the cases) featured the false testimony of an accomplice witness or other informant as prominent evidence for the initial conviction.12 Among death row cases, the data show an even more bleak picture: 51 of the 111 death row exonerees since the 1970s were initially convicted and sentenced on the basis of false accomplice witness testimony, making such testimony the leading cause of wrongful convictions in capital cases.13 In other words, not only do the incentives associated with accomplice witness testimony lead to incorrect convictions, but these convictions would have had dire consequences for the defendant if they were not acquitted.
Despite this, I recognize that such statutory protections as those discussed above are unlikely to come into play in this particular case. Most, if not all, the guilty pleas in the Mueller probe have come from individuals who are being tried in federal jurisdictions, where accomplice testimony is generally afforded no special scrutiny. It is clear that such testimony, as has been considered here, would likely be permissible by the rules of our legal system. However, it is equally clear that we must at least normatively evaluate our collective trust in accomplice witnesses, especially in cases of such high importance as the Special Counsel’s investigation. Surely, the justness of a legal system lies not only in its ability to reliably dole out justice to the guilty but also in its ability to reliably acquit the innocent. Nor would it be particularly helpful to the popular legitimacy of an already-politicized federal judiciary to have to try the veracity of accomplice witnesses in the court of public opinion. In any case, secretive though the Special Counsel and his team may be regarding their strategy, they would do well to plan for the possibility of such a controversy.
Lyle Carrera is a sophomore at the Johns Hopkins University, where he is majoring in public health studies and political science.
1 U.S. Department of Justice, Office of the Deputy Attorney General, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, by Rod J. Rosenstein, Order 3915-2017 (Washington, D.C., 2017), https://www.justice.gov/opa/press-release/file/967231/download.
2 U.S. Department of Justice, The Special Counsel’s Office, Re: United States v. George Papadopoulos, by Jeannie S. Rhee, Andrew D. Goldstein, and Aaron S. J Zelinsky, (October 5, 2017), https://www.justice.gov/file/1007341/download.
3 U.S. Department of Justice, The Special Counsel’s Office, Re: United States v. Paul J. Manafort, Jr., by Jeannie S. Rhee, Andrew Weissmann, Greg D. Andres, and Kyle R. Freeny, (September 13, 2017), https://www.justice.gov/file/1094151/download
6 Cool v. United States. 409 U.S. 100 (1972).
7 Crawford v. United States 212 U.S. 183 (1909)
8 Prepared by Committee on Pattern Jury Instructions, Eleventh Circuit. “Eleventh Circuit Pattern Jury Instructions”. Montgomery, Alabama. 2016.
9 McMillen v. United States, 386 F.2d 29, 31 (1st Cir. 1967).
11 Watson v. State of Maryland, 117 A.2d 549 (Md. 1955).
12 Garrett, Brandon L., “Convicting the Innocent Redux.” Cambridge University Press, Forthcoming, 2015. D. Medwed, Ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent. Available at SSRN: https://ssrn.com/abstract=2638472
13 Warden, Rob. 2005. The Snitch System.
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