Frank DiPascali Mug Shot |
Despite Bernie Madoff’s claim that he alone
perpetrated the roughly seventeen billion dollar ponzi scheme, the government
has pursued charges against a number of other individuals. After a five-year investigation, at the heart
of the prosecution’s case is a cooperating witness. In August 2009, Frank DiPascali, Madoff's
former Chief Financial Officer, pled guilty to ten counts of fraud, conspiracy,
and other charges, and admitted to the court, “I helped Bernie Madoff and other people carry out a fraud." In the ongoing case that began in October
against five former employees of Madoff’s financial firm, DiPascali is expected
to testify and provide key evidence in hope of reducing the length of the
prison sentence he will likely receive.
Because conspiracies are secret by their nature, prosecutors
often rely on cooperating witnesses to prove these cases. A cooperating witness is a person who
participated in the crime and is willing to assist the investigation and/or testify
about the roles played by the co-conspirators. Usually a witness cooperates in hope of
mitigating the severity of the punishment the witness faces for his own involvement
in the criminal activity. These
cooperation agreements are typically included within a plea agreement and
require the witness to admit his criminal conduct, plead guilty, and agree to
assist the government in its investigation and prosecution of other individuals. If the government deems the assistance
“substantial,” it will file what is known as a §5K1.1 motion and request that
the court depart downward from the recommended guidelines sentencing range for
the cooperating witness. In turn, this reduces the witness’s likely punishment.
The government’s use of cooperating witnesses such as DiPascali
has raised concerns in recent years about jurors’ overreliance on cooperating
witness testimony and the justice system’s inability to balance out that effect. Neuschatz et al. (2008) conducted one of the first psychological studies regarding the effect of
informant and cooperating witness testimony on juror decision making. In that study, participants acting as jurors
read trial transcripts that included testimony from an accomplice who allegedly
acquired information through involvement in the alleged crime.[1] The experimenters manipulated whether the jurors
also learned that the cooperating witness received sentencing incentives in
exchange for his/her testimony. The
participants were then asked questions regarding whether they would convict the
defendant, and to what they attributed the witness’s motivation for coming
forward. The results indicated that information about the cooperating witness’ incentive
(e.g., leniency or reward) did not affect participants’ verdict decisions. With regard to the witness’s motivation for
testifying, the experimenters noted that the participants overwhelmingly committed what is known as the fundamental attribution error – they ignored the
contextual and situation factors (i.e., receiving leniency) and instead
attributed the witness’s motivation to dispositional factors (i.e., the witness
wanted to “do the right thing”). Essentially, the jurors accepted the witness’s
testimony without considering the witness’s motive or inducement to fabricate.
Beyond the limited social psychology research on the topic,
many other concerns about cooperating witness testimony have emerged. For instance, some surmise that, because
cooperating witnesses in white collar criminal prosecutions are less likely to
have extensive criminal backgrounds and appear sophisticated and presentable,
jurors may be more likely to believe them than the typical jailhouse “snitch.”[2] Many have also noted the “cooperation
paradox” as a sign of the unfairness of the use of cooperating witnesses: those
who are the most culpable, have the most information about the criminal
activity, and face the greatest penalties are the ones most likely to be
offered cooperation deals to testify against low-level individuals.[3]
Defendants have also been somewhat restricted by the courts
in their ability to attack cooperating witness testimony. In Daubert v. Merrill Dow Pharmaceuticals Inc.,
the Supreme Court noted at least three safeguards the accused has to discredit
unreliable testimony: (i) cross examination, (ii) presentation of contrary
evidence, such as that provided by expert witnesses, and (iii) judicial
instructions to the jury. However, the Fifth Circuit recently affirmed
the district court’s refusal to allow defense counsel to cross examine a
cooperating witness regarding the witness’s actual exposure under the Federal
Sentencing Guidelines. The Fifth Circuit
held that these limitations did not violate the Confrontation Clause. Additionally, the Fourth Circuit held that understanding the
ramifications a cooperating witness’s plea agreement, and thus the witness's
motivations, did not require expert testimony.
Rather, this was a matter of “common sense” and one that the jury could decide for itself without the aid of expert testimony.
This is not to say that the government’s use of cooperating
witness testimony is completely without safeguards. Prosecutors have a constitutional duty to disclose any incentives offered to cooperating witnesses in addition to strict ethical guidelines to disclose information regarding
cooperation agreements. Courts have also adopted cautionary jury instructions regarding how much weight the jury should give to cooperators’
testimony. Ultimately, perhaps the best safeguard is a
skillful cross examination. Richard
Bistrong, who in 2007 cooperated with the FBI and Department of Justice and
testified against others in a criminal Foreign Corrupt Practices Act case,
endured three weeks of cross examination by six separate defense
attorneys. Afterward, he explained that “[i]t was difficult and there was nothing that could have prepared me for what I endured on the stand over that period of time.”
Kyle O'Grady
Senior Editor, Criminal Law Practitioner
Image by United States Marshals Service [Public domain], via Wikimedia Commons.
[1]
Control groups in the study were not exposed to testimony from the cooperating
witness.
[2]
Ellen S. Podgor, White-Collar
Cooperators: The Government in Employer-Employee Relationships, 23 Cardozo
L. Rev. 795, 802-803 (2002).
[3]
See, e.g., id. at 799;
Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L.
Rev. 199, 212 (1993).
Interesting outcome from the psychological study involved in relation to white-collar defendants. Based on that result, it seems the resources and means available under the law for defendants are both limited and insignificant, and possibly creating a Fifth Amendment due process problem.
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