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25.7 Witness Or Informant Receiving Benefit From Prosecution

    25.7.1 Witness Receiving Personal Inducements From Prosecution: Cautionary Instruction
    25.7.2 Cautionary Instruction: Addict-Informer
    25.7.3 Informant Testimony Requires Greater Care And Caution Than Ordinary Witness
    25.7.4 Inquiry Into Nature Of Informant's Sentence
    25.7.5 Interest Of Witness In Outcome/Result Of Trial: Testimony May Still Be Believed
    25.7.6 Combining Reasons For Questioning Credibility Of Informers And Accomplices In A Single Instruction
    25.7.7 Jailhouse Informer: Cautionary Instruction
    25.7.8 Testimony Of Paid Informant: Procedural Safeguards To Be Followed

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RATIONALE: 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.

POINTS AND AUTHORITIES: When an informer -- whether in custody or not -- has received benefits from the prosecution in exchange for his/her testimony, a special informer cautionary instruction is warranted.

    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; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 17.02 [Survey Of Selected Criminal Statutes] (West, 5th ed. 2000).)

    "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].)

    However, with respect to jury instructions the issue is the reliability of the practice not its lawfulness. With regard to reliability such evidence is uniquely suspect. For example, imagine a civil action where one party paid a percipient (as opposed to an expert) witness to testify. Such a procedure would be so extraordinary that the credibility of the "hired" witness would be severely compromised and the jury would rightly be expected to closely scrutinize such testimony.

    Similarly, in the criminal context 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].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

Steven S. Troit, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hast.L.J. 1381 (1996).

See also generally, FORECITE National™ 305.9.4 [Informants].

See 8th Circuit Model Jury Instructions - Criminal 4.05A.

See also 9th Circuit Model Jury Instructions - Criminal 4.10.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 25.

   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.

[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.

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

SAMPLE INSTRUCTION # 3:

    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.

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

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RATIONALE: An explanatory instruction may be appropriate to assure the jury understands the unique motives an addict has for testifying falsely.

POINTS AND AUTHORITIES: U.S. v. Hessling (6th Cir. 1988) 845 F2d 617, 620-21, approved an addict-informer instruction and held that it may be given in the discretion of the trial court. (See also Champion v. State (NV 1971) 490 P2d 1056, 1057 [prejudicial error to omit cautionary instruction regarding the evaluation and use of an addict-informer’s testimony, despite lack of request].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See generally, FORECITE National™ 305.9.4 [Informants].

See 5th Circuit Pattern Jury Instructions - Criminal 1.14.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.16.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.06A.

See also 7th Circuit Federal Jury Instructions - Criminal 3.13.

See also 8th Circuit Model Jury Instructions - Criminal 4.05A.

See also 9th Circuit Model Jury Instructions - Criminal 4.10.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 25.

    You should consider _____’s testimony with more caution than the testimony of other witnesses. An addict may have a constant need for drugs, and for money to buy drugs, and may also have a greater fear of imprisonment because his supply of drugs may be cut off. Think about these things and consider whether his testimony may have been influenced by the government’s promise.

[Adapted from 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.06B [Testimony Of An Addict-Informer Under Grant Of Immunity Or Reduced Criminal Liability] ¶ 2 (1991).]

    You should examine the testimony of an addicted informer more closely and be more careful about accepting it.

SAMPLE INSTRUCTION # 3:

        In evaluating the testimony of an addicted informant consider the following:

(a)     Whether the drug addiction of the witness affected his or her memory of events or ability to testify accurately?

(b)     Whether the witness's addiction gave him or her a reason to testify falsely?

(c)     Whether the witness has received or expects to receive a benefit as a result of testifying?

(d)     Whether the witness's testimony was falsely slanted to make the defendant seem guilty because of the witness's own interests or to remove suspicion from others, or because the witness feared retaliation from others?

(e)     Was the witness affected by the fear of being denied access to drugs if he or she is incarcerated?

(f)     Does the witness have a past criminal record?

    In sum, consider an addicted informant's testimony more cautiously than you would that of an ordinary witness. You must examine it with close scrutiny before accepting it in whole or part.

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    See FORECITE National™ 25.6.2 [Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution].

See 7th Circuit Federal Jury Instructions - Criminal 3.13.

See also 8th Circuit Model Jury Instructions - Criminal 4.05A.

See also 9th Circuit Model Jury Instructions - Criminal 4.10.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 25.

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PRACTICE NOTE: See U.S. v. Caldwell (8th Cir. 1996) 88 F3d 522, 524-25 [error to preclude defense inquiry into length of sentence to which witness would have been exposed absent the prosecution deal to reduce the charge].

See generally, FORECITE National™ 305.9.4 [Informants].

See 8th Circuit Model Jury Instructions - Criminal 4.05A.

See also 9th Circuit Model Jury Instructions - Criminal 4.10.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 25.

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RATIONALE: Without a balanced instruction -- informing the jury that the defendant’s testimony may still be truthful notwithstanding a motive to lie -- there is a danger that the jury will give this factor undue weight.

POINTS AND AUTHORITIES: U.S. v. Matias (2nd Cir. 1988) 836 F2d 744, 749-50; Emery v. State (WI 1899) 78 NW 145, 154.

    See also FORECITE National™ 300.12.1 [Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution].

PRACTICE NOTE: While it may seem preferable to not include any instruction at all regarding the defendant’s interest in the outcome of the case, some thought should be given to the fact that the jury may on its own, focus on this rather obvious interest a criminal defendant has in the outcome of the case. This may be especially true if the jurors are given other general instructions suggesting that they may rely on their common sense or knowledge. (See FORECITE National™ 18.5.1.2 [Instruction On Defendant's Personal Interest In The Outcome Of The Case Should Be Balanced].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].

PRACTICE NOTE: Instruction Also Applicable To Out-Of-Court Statements. If appropriate, the instruction should be modified to apply to out-of-court statements as well as testimony. (See FORECITE National™ 27.5 [Witness Credibility: Out-Of-Court Statements].)

See generally, FORECITE National™ 305.9.4 [Informants].

See 7th Circuit Federal Jury Instructions - Criminal 3.13.

See also 8th Circuit Model Jury Instructions - Criminal 4.05A.

See also 9th Circuit Model Jury Instructions - Criminal 4.10.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 25.

    You are cautioned, however, that interest in the result of the trial creates no presumption that such witnesses will give false testimony.

[Emery v. State (WI 1899) 78 NW 145, 154.]

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    See FORECITE National™ 25.6.8 [Combining Reasons For Questioning Credibility Of Informers And Accomplices In A Single Instruction].

See 8th Circuit Model Jury Instructions - Criminal 4.05A.

See also 9th Circuit Model Jury Instructions - Criminal 4.10.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 25.

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RATIONALE: Because of the incentive for a jailhouse informer to falsify testimony in order to curry the favor of the prosecution or in exchange for past or future benefits, it may be appropriate to caution the jury regarding the reliability of this testimony.

POINTS AND AUTHORITIES: See Dodd v. State (OK 2000) 993 P2d 778, 784; see also Guam v. Dela Rosa (9th Cir. 1980) 644 F2d 1257, 1259-60; Steinmark v. Parratt (D.Neb. 1977) 427 FSupp 931, 936 fn 4; U.S. v. Morgan (9th Cir. 1977) 555 F2d 238, 243 fn 10. 

    See also FORECITE National™ 25.5.1 [Immunized Witness To Be Viewed With Greater Caution Or Distrust: Exposure To Perjury From Immunity Agreement].

    See also FORECITE National™ 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].

    See also FORECITE National™ 25.5.2 [Testimony Under Grant Of Immunity: Greater Caution Than Ordinary Witness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.4 [Informants].

See 6th Circuit Pattern Jury Instructions - Criminal 7.06A.

See also 8th Circuit Model Jury Instructions - Criminal 4.05A.

See also 9th Circuit Model Jury Instructions - Criminal 4.10.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 25.

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    25.7.8    Testimony Of Paid Informant: Procedural Safeguards To Be Followed

PRACTICE NOTE:  In U.S. v. Levenite (4th Cir. 2002) 277 F3d 454, 458 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].