THE USE OF A CRIMINAL AS A WITNESS: A SPECIAL PROBLEM

In the hands of an experienced physician, a scalpel is a marvelous tool. It can remove a deadly tumor or repair a diseased heart. The success of such procedures, of course, depends upon the skill of the surgeon, because that same scalpel in inexperienced or careless hands can fatally nick a healthy artery, severe an unseen nerve, or even perform an operation on the left knee when the right one is the problem.

A cooperating criminal used as a witness against other criminals is much like a scalpel. Jimmy the Weasel Fratianno can be used to bring down the West Coast Mafia, Sammy the Bull Gravano to unseat mob boss John Gotti, and Michael Fortier to deliver a crushing testimonial blow to Timothy McVeigh in the Oklahoma Federal Building bombing case. In point of fact, one of the most useful, important, and, indeed, indispensable weapons in civilization’s constant struggle against criminals, outlaws, and terrorists is information that comes from their associates. But, as in the case of a scalpel, the careless, unskilled, or unprepared use of cooperating criminal as a witness has the capacity to backfire so severely that an otherwise solid case becomes irreparably damaged, and the fallout can sometimes wreck a case and even tarnish a prosecutor’s reputation or career.

A cooperating criminal is far more dangerous than a scalpel because an informer has a mind of his own, and almost always, it is a mind not encumbered by the values and principles that animate our law and our own Constitution. An informer is generally motivated by rank and frequently sociopathic self-interest and will go in an instant wherever he perceives that interest will be best served.

By definition, informer-witnesses are not only outlaws, but turncoats. They are double crossers, and a prosecutor not attuned to these unpleasant truths treads without cleats on slippery ice. In a moment, a prosecutor can effectively go from prosecutor to the object of an investigation, with chilling consequences. Moreover, an informer even apparently fully on board can commit perjury, obstruct justice, manufacture false evidence, and recruit other witnesses to corroborate his false stories. After 40 years in our justice system, I conclude that the greatest threat to the integrity of our justice process and to its truth seeking mission — indeed, even to prosecutors themselves — comes from informers poorly chosen for their roles and then carelessly managed and handled.

On the other hand, some of the greatest successes in our criminal courts could not have been accomplished without the expert and skilled use of such witnesses. Vincent Bugliosi deftly used Manson Family members to bring down their trusted leader, Charles Manson himself. An endless array of adept prosecutors have used Mafiosi to topple their bosses and destroy their empires.

Even President Richard Nixon was extracted from the highest office in our nation with the help of testimony from his closest confidants. The list of successes is lengthy, and it is impressive. As the Supreme Court said in Kastigar v. United States, 406 U.S. 441, 446 (1972), our immunity statutes “reflect the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.”

But how does a prosecutor become adequately schooled and skilled in this peculiar area of his or her craft? The required curriculum cannot usually be found in the classrooms of our law schools, but only on the streets and in the jails and courtrooms of our towns and cities. Knowledge here comes from the trenches, from the veterans, from the school of hard knocks; and hopefully it comes before troublesome mistakes are made.

Read further: https://www.aclu.org/files/pdfs/drugpolicy/informant_trott_outline.pdf

Stephen S Trott (Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit)

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