As a federal prosecutor, I heard dozens of defense attorneys criticize the use of accomplice testimony in criminal trials. The arguments are familiar—unseemly witnesses lie to curry favor with unscrupulous prosecutors motivated by a desire for conviction. They suggest to juries that these “snitches” are the real criminals in court, not the wrongly accused defendants sitting next to them at counsel table.
I recalled those arguments when I listened to President Donald Trump attack the use of “flippers” during an interview with Fox News after his former attorney Michael Cohen reached a plea agreement with federal prosecutors in New York. Trump suggested Cohen made up stories about him to obtain leniency from prosecutors. He went so far as to suggest that the practice of using accomplice testimony should be outlawed. And in the interview he also praised his former campaign manager Paul Manafort for refusing to cooperate with the Justice Department at the time.
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Now that Manafort has changed his mind—Trump’s former campaign manager reached a plea agreement with the Office of Special Counsel, announced on Friday—the president will probably continue to bash criminal defendants who cooperate with the federal government. Although it is not yet clear what information Manafort will provide the special counsel, I expect a barrage of critical presidential tweets accusing Manafort of telling lies in the face of the undue pressure from an overzealous prosecutor.
But Trump and the like-minded defense lawyers who criticize accomplices in trials around the country fail to appreciate the way these witnesses are utilized by prosecutors. They are not star witnesses, solely responsible for convictions. Instead, they provide pieces of larger puzzles. When used correctly, accomplice witnesses contribute information that is corroborated by other evidence as part of a comprehensive trial presentation.
In the early 2000s, I was part of a small group of federal prosecutors that designed a course in how to use accomplice witnesses. Entitled “Working with Cooperators and Confidential Informants,” the course was taught at the National Advocacy Center in Columbia, South Carolina, where all Department of Justice lawyers receive training. Hundreds of DOJ prosecutors have taken this course and learned how to handle cooperating witnesses.
Our course instructed federal prosecutors to approach accomplice witnesses with caution and appreciate the skepticism with which they are viewed by juries. We taught prosecutors that to overcome that suspicion and effectively use cooperators, they must find other evidence—evidence untainted by the motive to curry favor that afflicts the credibility of accomplice witnesses—to bolster the cooperators’ credibility. For example, are there documents or physical evidence that support the cooperator’s testimony? Did the accomplice provide information that those uninvolved with a particular crime would not be aware of? Do other witnesses who are not accomplices provide similar information? Prosecutors ask these questions as they build evidentiary foundations to support the insiders who testify about criminal schemes.
The lawyers who prosecuted Manafort followed this playbook to the letter in the recent trial in Alexandria. They presented the testimony of Rick Gates, Manafort’s business partner throughout the time of his alleged crimes. But they didn’t simply ask the jury to believe Gates. They worked hard to corroborate his testimony. They introduced emails, financial records and other documents that supported what Gates said. They called bankers, mortgage brokers and accountants who provided accounts of various transactions that Gates described. They did what prosecutors must do when using cooperators: They built a wall of support around the accomplice and used it to bolster his testimony.
Manafort’s lawyers were not without tools to combat the government’s use of an accomplice witness. They established that Gates was dishonest in multiple ways, from embezzlement to fraud to marital infidelity. Manafort’s team also asked for and received a jury instruction regarding the unreliability of accomplice testimony—standard practice for trials in which accomplices testify. Judge T.S. Ellis III told the jury to view accomplice testimony “with suspicion” and to pay attention to the incentives the accomplice has to please the prosecutors responsible for his ultimate fate. The jury considered that information as it evaluated Gates’ credibility.
In closing argument, the lawyers in the Manafort trial each argued why Gates should or should not be believed. Manafort’s attorney Richard Westling made the standard defense argument that Gates fabricated information about Manafort when his back was to the wall and he needed an escape. Prosecutor Greg Andres suggested to the jury that they didn’t have to simply take Gates’ word for it when evaluating his testimony. Instead, they could compare his testimony to the other evidence presented in the trial which showed that Gates told the truth. Moreover, Andres argued that even without the testimony of Gates, there was still sufficient evidence to convict Manafort. The jury believed Andres. They did what juries almost always do when faced with accomplice testimony: They convicted the defendant.
Our criminal justice system is imperfect and does not always produce a just outcome. But in the area of accomplice testimony, it provides important safeguards to help juries evaluate their credibility. With Manafort now cooperating and perhaps set to testify against others, defense attorneys will have the same tools available to impugn his credibility. And prosecutors will work to corroborate his testimony by pointing to documents, other witnesses and physical evidence to support his credibility.
Trump is clearly frustrated with the inexorable progress of the special counsel’s investigation. But his blame on cooperator testimony is misplaced. Manafort’s guilty verdict, and his recent plea agreement are simply the product of a system that empowers prosecutors to use cooperator testimony as part of a larger body of proof and allows defense attorneys to challenge such testimony with bad acts and incentives. The system generally gets it right in this area. Perhaps that’s why the president is so frustrated.