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How to Handle Snitch Testimony

What to Do when the Government’s case rests primarily if not exclusively on the testimony of snitches

Almost every federal drug prosecution utilizes the “word” of informants or cooperating co-defendants at some level, whether in obtaining a wiretap order, a search warrant, an indictment or in the presentation of witnesses in the government’s case in chief at trial. The exchange of something, be it money, immunity, or a reduction of sentence, for the word of such individuals almost always underlies the use of what a snitch says.

One of the first things I tell clients facing federal prosecution is that as of the day the investigation began, they have no friends. This is particularly true of drug cases involving multiple defendants. Everyone is looking for a way out and  for defendants facing a strong case on the part of the prosecution, the way out is to cooperate with the government and provide information. Many drug prosecutions begin with a traffic stop often based on undisclosed snitch information.  The arrested individual may then begin to provide information as a way to avoid prosecution or reduce time faced. That information is then used to obtain wiretaps, search warrants and indictments.

The problem with the heavy reliance by the government on the exchange of a way out for information is that the truth is often left by the side of the road. Many a snitch will tell the government agents what they want to hear to get out. While the unreliability of such information is recognized to a certain degree by the Courts (as an example, there is a standard jury instruction that tells the jurors that to consider carefully the credibility of such witnesses), it generally does not get evidence suppressed or a case dismissed.

So what do you do? You push at the unreliability. You file the motion to suppress. You look for the lie. You evaluate the case for the keeper of the lie. Oftentimes, the lie begins with the snitch telling a drug enforcement officer what he or she wants to hear. Sometimes, the officer wants the win badly enough to encourage the lie. However, it has been my experience that pushing to expose the lie through pretrial motions and hearings erodes a prosecutor’s confidence in the ability to win the case.

What do you get when you get there? I have successfully obtained dismissals in a handful of cases where the lie was big and either substantially corroborated by physical evidence (in one case, involving drug charges, the wrongful identity of the defendant was demonstrated by high tech blow ups of video evidence; in another case involving charges of medicare fraud, records demonstrated that the government agent’s statements were not true). Dismissals in federal cases, however, require approval, sometimes all the way from the Department of Justice in Washington. Sometimes the Assistant United States Attorney cannot obtain approval to dismiss from the requisite higher authority, be it his boss or Washington.

What do you get then? If you push hard enough and either have an honorable prosecutor or at least a prosecutor who does not want to lose, you get an increasingly better offer. In one recent drug case, I was able to establish at a pretrial detention hearing that the Government did not have proof from its witnesses of an essential element of the drug prosecution at the time of the indictment or the hearing. As trial approached, the lead agent pressured witnesses to provide the necessary testimony, kicking in doors and threatening witnesses. I got affidavits and filed motions.  With the trial date a few days away, the Court withheld ruling and my client faced decent odds of an acquittal in front of a jury.

At this point the decision of whether to go to trial or accept a deal lies with the defendant. Many times clients tell me that there is no evidence because the witness is lying. Unfortunately, this is not quite the case. A judge will usually let the jury decide the truth of the matter and if the jury convicts, an appellate court is not going to throw the conviction out on the issue of credibility, particularly in the face of a strong cross examination questioning the reliability of what the snitch says.

In the case I referred to above, when the odds of winning started looking better and the entire prosecution team wanted to negotiate, I let my client decide. While I felt like a jury would acquit, f we lost, he faced substantial prison time. I asked him if he wanted to go to trial or if there was anything he might take. He told me he could live with two years.  I told the prosecutor that we had to end up at the guideline that put us there and we figured out, how to get there.  The strong tendency of federal courts to rely on the advisory federal sentencing guidelines sometimes necessitates creative plea bargaining. We not only got what we wanted, but the judge gave him credit for the pretrial detention time spent on house arrest and while awaiting designation to a federal facility.

In cases like that, I always look back wondering what a jury would have done. Sometimes, though, when you push hard enough and the defendant faces many years in prison if you lose, the deal gets too good to turn down. Let me say that a bit differently. The deal sometimes gets too good for my client to turn down. It is my job to litigate hard. It is ultimately my client’s decision what to do.