(September 2002)

by Thomas Lundy

    1.     Rationale And Case Authority For Cautionary Instructions Regarding Witnesses Receiving Inducements

    A cautionary instruction may be appropriate to assure that the jury understands the special reliability concerns which apply to the testimony of a witness who has been induced to testify in exchange for personal gain.

    The courts have long recognized that the definition of an informer includes persons who provide evidence against a defendant for personal advantage or vindication, as well as for pay or immunity. (See Guam v. Dela Rosa (9th Cir. 1980) 644 F2d 1257, 1259; U.S. v. Morgan (9th Cir. 1977) 555 F2d 238, 243, fn 10; Steinmark v. Parratt (D.Neb. 1977) 427 FSupp 931, 935, fn 4; O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 17.02 [Survey Of Selected Criminal Statutes] (West, 5th ed. 2000); Steven S. Troit, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hast.L.J. 1381 (1996).)

    "Because of the stark reality [that addicts may fabricate statements for personal gain], [the 9th Circuit] has stated that when a witness is a heroin addict who provides evidence against a defendant, for some personal advantage or vindication, it is appropriate for a court to give the jury an instruction indicating that these circumstances may affect the witness’ credibility, and the jury should therefore consider the witness’ testimony with greater care than that of an ordinary witness. [Citations.]" (Singh v. Prunty (9th Cir. 1998) 142 F3d 1157, 1164.)

    Viewed objectively it is an extraordinary practice to allow the testimony of a witness who has been "induced" to testify by benefits received from the prosecution. Indeed, some suggest that such inducements should be characterized as unlawful bribery of a witness. (See e.g., U.S. v. Singleton (10th Cir. 1999) 165 F3d 1297, 1313-14, dissenting opinion; U.S. v. Revis (ND OK 1998) 22 FSupp2d 1242; but see U.S. v. Abraham (D. NJ 1999) 29 FSupp2d 206, 209 [citing contrary cases].)

    Certainly the practice of paying a witness to tell the truth has been repudiated. (See Illinois v. Kien (IL 1977) 372 NE2d 376 [defense attorney suspended from practice for paying a police officer for allegedly truthful testimony in a criminal case]; see also In re Robinson (1912) 151 AD 589, 600; 136 NYS 584; 556 ["The payment of a sum of money to a witness to tell the truth is as clearly subversive of the proper administration of justice as to pay him to testify to what is not true"]; New York v. Solvent Chem. Co. (WDNY 1996) 166 FRD 284, 290 ["the payment of money to a witness...[is] absolutely indefensible..."]; Golden Door et al v. Lloyd’s (1994) 865 FSupp 1516, 1525 [payments to fact witnesses to "tell the truth" prohibited because "Justice must not be bought or sold"].)

    In sum, the credibility of a paid witness is inherently suspect and should be closely scrutinized. (See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.10 [Testimony of Witness Receiving Benefits] (2000).)

    See also FORECITE National™ 25.7.8 [Testimony Of Paid Informant: Procedural Safeguards To Be Followed]. 

    2.     Constitutional Basis For Cautionary Instructions Regarding Witness Credibility

    "A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ [Citation.] Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ [Citation.]" (U.S. v. Scheffer (1998) 523 US 303, 313 [118 SCt 1261; 140 LEd2d 413].) "Implicit in the right to trial by jury afforded criminal defendants under the 6th Amendment to the Constitution of the United States is the right to have that jury decide all relevant issues of fact and to weigh the credibility of witnesses." (U.S. v. Hayward (DC Cir. 1969) 420 F2d 142, 144; see also U.S. v. Gaudin (1995) 515 US 506, 511 [115 SCt 2309; 132 LEd2d 444]; Davis v. Alaska (1974) 415 US 308, 318 [94 SCt 1105; 39 LEd2d 347]; Bollenbach v. U.S. (1946) 326 US 607, 614 [66 SCt 402; 90 LEd 350] ["...the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials...."].)

    Procedures, jury instructions or the absence of jury instructions which result in the impairment of the jury’s central function of assessing the credibility of witnesses may implicate the defendant’s federal constitutional right to trial by jury. (See Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273 [error in excluding a statement relating to the credibility of a child witness was of constitutional magnitude based on Crane v. Kentucky (1986) 476 US 683, 690-91 [106 SCt 2142; 90 LEd2d 636]]; U.S. v. Bloome (E.D.N.Y. 1991) 773 FSupp 545, 547 [opportunity for jury to appraise the credibility of witnesses safeguards the defendant’s rights]; People v. Robinson (CO 1993) 874 P2d 453, 459 [the trial court may not, consistent with the due process rights of defendant to a fair trial before an impartial judge and jury, express to the jury any personal opinion of credibility of witness and should scrupulously avoid even an appearance of partiality].)

    "No matter how lightly the court may regard the testimony offered on behalf of the defense, the question of its weight and the credibility of the witnesses is to be determined by the jury, properly instructed as to the law. Unless this is followed, a defendant is deprived of his constitutional right of a trial by jury." (Gallegos v. People (CO 1957) 316 P2d 884, 885; see also State v. Joyner (CT 1992) 625 A2d 791, 805 [criminal defendant has constitutional right to reveal facts to the jury regarding the mental condition of a witness which may reasonably affect the credibility of the witness]; Taylor v. Illinois (1988) 484 US 400, 430, fn 5 [108 SCt 646; 98 LEd2d 798] (dis. opn. of Brennan, J.) ["The constitutional right to a jury trial would mean little if a judge could exclude any defense witness whose testimony he or she did not credit."].)

    Furthermore, to the extent that a cautionary instruction furthers the reliability of the jury’s verdict it is grounded upon the Due Process Clause of the federal constitution which has a reliability component. (See generally Ohio v. Roberts (1980) 448 US 56, 70 [106 SCt 1121; 65 LEd2d 597] [testimony given under oath and subject to cross-examination bears an "indicia of reliability"]; see also FORECITE National™ 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].) 

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases 8th Amendment claims may apply, in addition to the federal claims discussed above. (See e.g., FORECITE National™ 13.5 [Fair And Reliable Sentencing Determination].

    3.     Sample Instructions

You have heard testimony that [witness], a witness, has received [benefits, compensation, favored treatment, etc.] from the government in connection with this case. You should examine [witness] testimony with greater caution than that of other witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of [e.g., benefits] from the government.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.10 [Testimony of Witness Receiving Benefits] (2000).]

So, while a witness of that kind may be entirely truthful in testifying, you should consider that testimony with more caution than the testimony of other witnesses.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Inst. 1.3 [Accomplice-Addictive Drugs-Immunity] ¶¶ 3 (1997).]

You have heard testimony from paid informants who were employed by the Government to investigate the defendants. The fact that an individual is a paid informant does not disqualify him as a witness. The uncorroborated testimony of a paid informant may be a sufficient basis for a finding of guilt if you believe beyond a reasonable doubt that such testimony is both credible and of sufficient weight. It is neither illegal nor improper to utilize paid informants in the enforcement of the criminal laws. However, the testimony of a paid informant must be subjected to a higher degree of scrutiny as to both weight and credibility. This is true because you must decide if such a witness has a greater motive to testify truthfully or falsely.

Further, if the payment to the informant is fully or partially contingent upon the content of his testimony at trial or upon a finding of guilt at trial, then such testimony must be subjected to an even higher degree of scrutiny.

[Instruction given in U.S. v. Levenite (4th Cir. 2002) 277 F3d 454, 460.]

8th Circuit Model Jury Instructions - Criminal 4.05A.

11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

Federal Judicial Center, Pattern Criminal Jury Instructions 25.

© Copyright 2002 Thomas Lundy, individually and doing business as juryinstruction.com. All Rights Reserved. Reprinted with permission.

Related Material

FORECITE National™

VOLUME 4 - CHAPTER 25

    25.7.8    Testimony Of Paid Informant: Procedural Safeguards To Be Followed

PRACTICE NOTE:  In [NF] U.S. v. Levenite (4th Cir. 1/10/2002) 277 F3d 454 a paid informant was offered an additional "lump sum case 'bonus' of up to $100,000.00" which was contingent on the informant's testimony against the defendants and the outcome of the case, including whether convictions were obtained in the case.  The defense contended that even if the arrangement did not violate 18 USC 201(c) [punishing bribery of witness], it did violate their right to due process. The Levenite court made scrutinized the procedures employed with respect to the paid informant and found that they were proper.  "Arrangements such as the one between the FBI and [the informant] create fertile fields from which truth-bending or even perjury could grow, threatening the core of a trial's legitimacy. Yet, even though compensation for testimony can be troubling, it does not follow that the use of such an arrangement renders such testimony constitutionally inadmissible per se.  'The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross examination, and the credibility of his testimony to be determined by a properly instructed jury.'"  (Levenite, 277 F3d at 461 [citing Hoffa v. United States (1966) 385 US 293, 311 [87 SCt 408; 17 LEd2d 374]].)

    "The task of obtaining truthful testimony to prosecute criminal matters often presents a difficult challenge to the government. Witnesses to criminal conduct are routinely either in conspiracy with the defendants or at risk of harm because they bore witness to criminal conduct. In either case, the government frequently faces barriers to obtaining relevant, truthful testimony ... But just as a payment may provide witnesses an incentive to come forward and testify truthfully at some risk to themselves, so too can the same payment provide an incentive to witnesses to come forward and lie simply for the purpose of receiving the payment. Even so, as long as there are adequate safeguards, the potential corruption should not condemn the practice."  (Levenite, 277 F3d at 461-62.)

    In recognizing "the substantial risk that financial incentives can corrupt, either through an aggressive prosecutor seeking testimony inconsistent with the truth or a witness testifying untruthfully to satisfy the government's objectives, testimony given under an arrangement involving the payment of a fee, 'salary,' or 'bonus,' whether contingent on the content of the testimony or not" the Levenite court suggested that such testimony may be received in court only within a structure of procedural safeguards:

    "First, a witness-fee payment arrangement must be disclosed to each defendant against whom the witness will testify before the proceeding at which the witness testifies. (See Giglio v. U.S. (1972) 405 US 150, 154 [92 SCt 763; 31 LEd2d 104] [holding that evidence affecting the credibility of a key witness is material]; Brady v. Maryland (1963) 373 US 83, 87 [83 SCt 1194; 10 LEd2d 215] [holding that due process forbids suppression by the prosecution of [material] evidence favorable to an accused when requested]; U.S. v. Anty 203 F3d 305, 312 [noting the importance of protecting a defendant's right to be apprised of the government's compensation arrangement with a witness].)  Second, the defendant must be afforded an opportunity to cross-examine the witness about the fee arrangement. (Anty, 203 F3d at 312.) Third, the court must instruct the jury about the heightened scrutiny to be given testimony provided under a fee payment arrangement. (U.S. v. Wilson (11th Cir. 1990) 904 F2d 656, 659.)  And finally, there can be no indication that the government is sponsoring or suborning perjury.  (U.S. v. Cervantes-Pacheco (5th Cir. 1987) 826 F2d 310, 315 ["The government of course must not deliberately use perjured testimony or encourage the use of perjured testimony"]. In addition, when the payment of a fee, "salary," or "bonus" is contingent on the content or nature of testimony given, the court must ascertain (1) that the government has independent means, such as corroborating evidence, by which to measure the truthfulness of the witness' testimony and (2) that the contingency is expressly linked to the witness' testifying truthfully. Moreover, when a witness is testifying under such a contingent payment arrangement, the government has a duty to inform the court and opposing counsel when the witness' testimony is inconsistent with the government's expectation."  (Levenite, 277 F3d at 462-63.)

    The court also rejected the defendants' contention that the agreement  was contingent on the informer's giving of testimony that would convict them.  The court found that the reason that the bonus was deferred was to provide an incentive for the informer to stay involved in the investigation which the court characterized as "risky."  (Levenite, 277 F3d at 463.)

    See also FORECITE National™ 25.7.1 [Witness Receiving Personal Inducements From Prosecution: Cautionary Instruction].  Available to subscribers.  To become a subscriber, click here.

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FORECITE National™

VOLUME 18 - CHAPTER 309

    309.6.7    Reliability Of Conviction And Sentence Guaranteed By Due Process

    This instruction is required by the Due Process Clause of the federal constitution which requires that a jury verdict which imposes criminal liability be reliable.

    "Reliability is ... a due process concern." (White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848].) Hence, the Due Process clauses of the federal constitution (5th and 14th Amendments) require that criminal convictions be reliable and trustworthy. (See Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431] and cases collected at fn 22 [due process "cannot tolerate" convictions based on false evidence]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].)

    See also FORECITE National™ 300.1.16 [Reliability Of Conviction And Sentence Guaranteed By Due Process].  Available to subscribers.  To become a subscriber, click here.

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]  Available to subscribers.  To become a subscriber, click here.

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)  Available to subscribers.  To become a subscriber, click here.

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)  Available to subscribers.  To become a subscriber, click here.

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

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FORECITE National™

VOLUME 18 - CHAPTER 309

    309.13.5    Fair And Reliable Sentencing Determination

    This instruction is required by the 8th and 14th Amendments of the federal constitution because the instruction [is necessary for] promotes a reliable sentencing determination. The federal constitution requires that the sentencing determination be reliable. (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 94]; see also Gilmore v. Taylor (1993) 508 US 333, 338-45 [113 SCt 2112; 124 LEd2d 306]; Penry v. Lynaugh (1989) 492 US 302, 328 [109 SCt 2934; 106 LEd2d 256]; Johnson v. Mississippi (1988) 486 US 578, 587 [108 SCt 1981; 100 LEd2d 575]; Green v. Georgia (1979) 442 US 95, 96-97 [99 SCt 2150; 60 LEd2d 738].)

    When the state seeks death, courts must ensure that every safeguard designed to guarantee "fairness and accuracy" in the "process requisite to the taking of a human life" is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [106 SCt 2595; 91 LEd2d 335]; see also Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393].)

    "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long....Because of this qualitative difference, there is a corresponding difference in the need for reliability...." (Woodson v. North Carolina (1976) 428 US 280, 305 [96 SCt 2978; 49 LEd2d 944]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [111 SCt 1723; 114 LEd2d 173]; Johnson v. Mississippi (1988) 486 US 578, 584 [108 SCt 1981; 100 LEd2d 575]; Mills v. Maryland (1988) 486 US 367, 377 [108 SCt 1860; 100 LEd2d 384]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [105 SCt 2633; 86 LEd2d 231]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [103 SCt 3446; 77 LEd2d 1171].)

    As a result, the 8th Amendment requires a "greater degree of accuracy" and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [113 SCt 2112; 124 LEd2d 306]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case "both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects"].) "[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error." (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)

    The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (1995) 514 US 419, 422 [115 SCt 1555; 131 LEd2d 490] in which the court quoted from Burger v. Kemp (1987) 483 US 776, 785 [107 SCt 3114; 97 LEd2d 638]: "Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case."

    The sentencing determination must also be fair. (See Gardner v. Florida (1977) 430 US 349 [97 SCt 1197; 51 LEd2d 393] [death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain]; see also Simmons v. South Carolina (1994) 512 US 154, 168 [114 SCt 2187; 129 LEd2d 133] [to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain].)

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