LEIMBACH 10/15/09 8:30 PM

MINIMIZING THE RISK OF INJUSTICE IN

COOPERATION AGREEMENTS
DAVID LEIMBACH*

This article explores many of the arguments for and against the use of plea-bargaining
in exchange for testimony. From the perspective of achieving justice, allowing
cooperation agreements can be risky especially because they may place an undue
pressure on the part of a co-conspirator to commit perjury in order to secure a
desirable bargain. At the same time, cooperation agreements currently serve an
important role in the operation of our judicial system. This article concludes that a per
se prohibition on testimony given in exchange for a plea-bargain is unnecessary and
instead describes a set of safeguards, which collectively mitigate the risks of such
arrangements to a sufficient degree.

I. INTRODUCTION .......................................................................................174
II. HISTORY ................................................................................................174
III. THE PRO/CON DEBATE ...........................................................................175
A. Benefits .......................................................................................176
1. Efficiency ..............................................................................176
2. Avoiding Uncertainty at Trial..............................................176
3. An Essential Prosecutorial Tool ..........................................177
B. Risks ............................................................................................178
1. Principle of Due Desert........................................................178
2. Unduly Coercive...................................................................179
3. Incites Perjury.......................................................................179
IV. A STANDARD FOR PERMISSIBILITY........................................................180
A. Disclosure and Cross-Examination ...........................................180
B. Jury Instruction ...........................................................................180
C. Corroboration..............................................................................181
D. Strictly Limited Contingency ....................................................181
E. Proportionality Condition ..........................................................182
V. CONCLUSION ........................................................................................182

* David Leimbach is a member of the class of 2010 at Dartmouth College double majoring in
Mathematics and Philosophy.

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I. INTRODUCTION

Although plea-bargaining – the process by which defendants plead

guilty in exchange for some form of leniency agreement – has been the
subject of much controversy among academics, it occupies a fundamental
role in the current operation of our judicial system. In our current system
approximately 90% of cases end with a guilty plea and a substantial
proportion of these guilty please arise out of plea-bargains.1 A particularly
interesting subset of plea-bargains, from a theoretical point of view, are
those offered in exchange for testimony. These cases raise important
questions beyond the traditional arguments for and against plea-bargaining
because they involve the rights of the party to be testified against and often
include reduced punishments for individuals culpable of truly heinous
crimes.
In this paper I present and respond to some of the most prominent
arguments against the state’s use of plea-bargaining in exchange for
testimony. I conclude that a per se prohibition on testimony given in
exchange for a plea-bargain is unnecessary and instead propose a set of
safeguards designed to mitigate the risks of such arrangements. The court
should consider the satisfaction of these criteria in determining whether the
use of a testimony obtained in exchange for a plea-bargain is permissible in
a particular case.

II. HISTORY

The practice of testifying in exchange for leniency has roots in early

common law when English courts would allow accomplices to accuse their
co-conspirators and would offer a pardon upon conviction. In these early
cases, the incentive to lie was extreme because a failure to convict the co-
conspirator usually resulted in execution for the original defendant.2 The
practice fell out of favor due to the likelihood of perjury and was replaced
with the practice of “turning King’s evidence.”3 The American legal system
inherited this tradition. In 1878, the Supreme Court ruled on The Whiskey
Cases and officially recognized the prosecutor’s unilateral right to enter
into cooperation agreements,4 and in 1892, the Court handed down a ruling
permitting the use of accomplice testimony despite the fact that the

1 Yvette A. Beeman, Accomplice Testimony Under Contingent Plea Agreements, 72

CORNELL L. REV. 800 (1987).
2 Spencer Martinez, Bargaining for Testimony: Bias of Witnesses Who Testify in Exchange
for Leniency, 47 Clev. St. L. Rev. 141, 143 (1999).
3 Supra note 1 at 800-801.
4 99 U.S. 594, 599 (1878).
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Summer 2009 COOPERATION AGREEMENTS 175

accomplice was an interested party.5 Since then, cooperation agreements

have played a significant role in the American judicial system,6 including
agreements that have been at least partially contingent on the results of the
trial after the testimony was already given.7
The debate over plea-agreements in exchange for testimony flared in
1998 as a result of a holding in United States v. Singleton. The court
convicted a Kansas woman for money laundering and conspiracy to
distribute cocaine after hearing testimony from an accomplice who
received leniency. The Tenth Circuit Court of Appeals overturned the
decision on the grounds that the prosecution’s cooperation agreement
violated a federal bribery statute. On rehearing en banc, the Tenth Circuit
vacated the Singleton I decision and supported the original ruling of the
district court.8 Nevertheless, Singleton I sparked a wave of appeals and a
series of opinions weighing in on the issue of plea-bargaining in exchange
for testimony.

III. THE PRO/CON DEBATE

Plea-bargaining in exchange for testimony is a particularly contentious

part of an already thorny issue. As a result, there is a sizable back-and-forth
literature discussing the advantages and disadvantages of this practice. By
examining these arguments carefully, we hope to better understand what
we would lose by implementing a per se prohibition on such arrangements
and what we risk by allowing them to continue. The goal of this paper is to
offer a path that allows us to both capture as many benefits and avoid as
many risks as possible.

5 See Benson v. United States, 146 U.S. 325, 337 (1892).

6 See United States v. Santabello, 404 U.S. 257, 260 (1971) (stating that plea-bargaining is
an “essential component of the administration of justice”); United States v. Anderson, 654 F.2d
1264, 1268 (8th Cir. 1981) (holding that accomplice testimony may by itself sustain a conviction
without corroboration; United States v. Fitts, 635 F.2d 664, 667 (8th Cir. 1980); United States v.
Knight, 547 F.2d 75, 76 (8th Cir. 1976); Williams v. United States, 328 F.2d 256, 259 (8th Cir.
1964); United States v. Dailey, 759 F.2d 192 (1st Cir. 1985) (allowing at least partially contingent
cooperation agreements); United States v. Fallon, 776 F.2d 727, 729 (7th Cir. 1985) (also
upholding contingent agreements).
7 See United States v. Dailey, 759 F.2d 192 (1st Cir. 1985); United States v. Fallon, 776 F.2d
727, 729 (7th Cir. 1985); United States v. Waterman, 732 F.2d 1527 (1984), vacated en banc, No.
83-2159 (8th Cir. Sept. 20, 1984), cert. denied, 471 U.S. 1065 (1985).
8 United States v. Singleton, 165 F.3d 1297, 1298 (10th Cir. 1998).
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A. Benefits

1. Efficiency

One of the most basic and common arguments in favor of plea-

bargaining is that it saves an enormous amount of time and energy relative
to full jury trials. Chief Justice of the Supreme Court Warren Burger argued
in 1970 that a reduction in the number of cases settled by guilty pleas from
ninety percent to eighty percent would nearly double the required amount
of judicial manpower and facilities.9 Detractors of plea-bargaining,
however, have sought to refute the case pressure argument on several
grounds. Some scholars have simply questioned the empirical basis for the
caseload theory, arguing either that plea-bargains do not save as many
resources as claimed 10 or that the system can and should adapt to the
increased capacity demands.11 Stephen Schulhofer has argued for bench
trials as a more just and nearly as efficient alternative to plea-bargaining.12
More abstractly, opponents may argue that administrative costs, at least by
themselves, are an insufficient justification for due process violations.13

2. Avoiding Uncertainty at Trial

Another argument used to defend plea-bargaining as a general practice

is that it avoids the uncertainty of trial – a consequence that may often be in
the interests of both the defendant and the prosecutor.14 Plea-bargaining
allows prosecutors to avoid the risk of an acquittal, ensuring that the
defendant serves at least some time for his or her crime despite a weak
prosecutorial case. Likewise, plea-bargaining grants defendants some
control over their sentences and the ability to avoid unexpectedly harsh
sentences.

9
Warren E. Burger, The State of the Judiciary - 1970, 56 A.B.A. J. 929, 931 (1970).
10
See Malcolm M. Feeley, The Process Is the Punishment, 186-87, 241 (1992) (in less
serious cases, a significant number of cases would result in a guilty plea even absent the plea-
bargaining process).
11 See Nardulli, The Caseload Controversy and the Study of Criminal Courts, 70 J. CRJM. L.
& CRIMINOLOGY 89, 91-93 (1979).
12 Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037-1107 (1984).
13 See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 647 (1974). The court found that
“administrative convenience alone cannot suffice to validate” due process violations.
14 See Debra S. Emmelman, Trial by Plea Bargain: Case Settlement as a Product of
Recursive Decisionmaking, 30 LAW & SOC’Y REV. 335-360 (1996) (argues for the efficacy of
plea-bargaining compared to trial outcomes).
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Summer 2009 COOPERATION AGREEMENTS 177

3. An Essential Prosecutorial Tool

Although economy and predictability are advantages of plea-

bargaining in general, by far the most common argument for plea-bargains
offered in exchange for testimony is that they are an essential prosecutorial
tool. Advocates of this method argue that the use of cooperation
agreements to encourage an accomplice to testify is fundamental to the
operation of our criminal justice system. It seems reasonable that co-
conspirators will often possess the most intimate knowledge of the crimes
for which a defendant is being prosecuted.15 Furthermore, because of the
nature of criminal activity, it seems likely that often a co-conspirator may
be the only witness capable of testifying about information crucial to the
prosecution’s case.16 Given the risks and stigma associated with “snitching”
in the criminal world, it is unlikely that prosecutors would frequently find
much success in convincing a co-conspirator to testify against a defendant
without substantial incentive.17 The tactic of “turning” low value targets
into witnesses against high-value targets is particularly instrumental in the
investigation and prosecution of organized crime and drug cases.18 These
factors likely played a considerable role in the Court’s thinking when it
stated that “no practice is more ingrained in our criminal justice system
than the practice of the government calling a witness who is an accessory to
the crime for which the defendant is charged and having that witness testify
under a plea bargain that promises him a reduced sentence.”19
Opponents to plea-bargaining in exchange for testimony may make
several arguments in response. They may argue that even without plea-
bargaining defendants may still assist state investigations in exchange for
leniency (for example, by helping locate a suspect or witness), such
cooperation should simply be inadmissible at trial. Indeed, in Singleton I
the court found that “a defendant can substantially assist an investigation or
prosecution in myriad ways other than by testifying.”20 Furthermore, the

15 United States v. Haese, 162 F.3d 366 (5th Cir. 1998) (in rejecting the reasoning in
Singleton I, the Court noted, “frequently the most knowledgeable witnesses available to testify
about criminal activity are other co-conspirators”).
16 United States v. Reid, 19 F. Supp. 2d 534, 537 (E.D. Va. 1998) (“there are situations where
those individuals may be the only credible witnesses of criminal activity and, without their
testimony, the government would not be able to obtain convictions”).
17 Id. “It is naive to assume that most coconspirators would be so altruistic as to abandon
their own self-interest and testify for the very government that seeks a stiff sentence against them
without a bargain being made.”
18 United States v. White, 27 F. Supp. 2d 646, 649 (E.D.N.C. 1998). “Without such
testimony, the government would be unable to enforce drug laws, prosecute organized crime
figures under RICO, or otherwise effectively proceed in the thousands of cases each year in
which it relies on witnesses who testify in return for leniency.”
19 United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987).
20 United States v. Singleton, 144 F.3d 1355 (10th Cir. 1998).
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fact that the police and prosecutors have come to rely on cooperation
agreements does not, by itself, guarantee that they do not violate due
process rights.

B. Risks

1. Principle of Due Desert

There have been many instances of public outrage in response to plea

bargains that were perceived to be overly lenient. At least, however, in the
case of normal plea-bargaining the amount of “bargain” usually has some
connection to a prosecutor’s confidence in her case against the defendant;
in the case of plea-bargaining in exchange for testimony, defendants
against whom the state possesses a strong case may still receive very
lenient punishments as a result of the testimony they are willing to offer.
Such deals are likely to trigger a sense of repulsion because they seem to
violate the principle of due desert. One notorious example is that of the
mobster Sammy Gravano, who, after confessing to a total of nineteen
murders, received a heavily reduced sentence in exchange for testifying
against John Gotti.21 Justice requires that certain crimes receive certain
punishments, so the argument goes. In response, proponents of cooperation
agreements may argue that plea-bargaining represents the best chance at
achieving a broader justice. Ideally, each criminal would receive exactly
the punishment appropriate to the crime, but pragmatically cooperation
agreements allow us to punish a greater number of the worst criminals.
Unfortunately, this may not always be the case. A study issued by the
U.S. Sentencing Commission suggests that there exists a high degree of
disparity in sentencing when comparing the sentence received and the
crime committed. In nearly 40% of the drug trafficking conspiracies
studied, more culpable defendants received sentences shorter or equal to
those received by at least one less culpable defendant. In many of these
cases, the more culpable defendant received a reduced sentence in
exchange for assistance given to the prosecution.22 A related concern is that
the plea-bargaining system creates a revolving door effect and undermines
the legitimacy of the legal system as a whole because criminals know they
can receive light sentences as long as they are willing to give up
information on individuals deemed to be more valuable targets.

21
Paul H. Robinson & Michael T. Cahill, Law Without Justice, 77-78 (2006).
22
Linda Drazga Maxfield & John H. Kramer, United States Sentencing Commission,
Substantial Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and
Practice 16 (1998).
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2. Unduly Coercive

Co-conspirators who receive plea-bargains in exchange for testimony

are often fairly unsympathetic characters. Nevertheless, we must be careful
to ask whether plea-bargains represent a violation of their due process
rights. In many respects, it is hard to imagine a more coercive environment
than the one created when a defendant is offered a plea-bargain, as there is
likely nothing of greater subjective value to a defendant facing charges than
a reduced sentence. Certain structural features of the system intensify this
coercion, such as the proliferation of mandatory minimum sentencing
provisions, which allow prosecutors to predict for defendants a fairly
determinate sentence should they be found guilty.23 Additionally, innocent
defendants, who are more likely to receive comparatively generous offers
(as a result of the weaker cases against them), tend to have the least faith in
the legal system (having been wrongly accused), and therefore may be
most likely to accept plea bargains in general. Proponents of plea-
bargaining may respond that acceptance of the plea is ultimately in the
hands of the judge, whose task is to ensure that the bargain does not violate
the rights of the defendant.

3. Incites Perjury

One of the greatest and oldest concerns about the practice of

exchanging a reduced sentence for testimony is that it incites perjury. We
must worry whether co-conspirators, who are offered plea-bargains, are
under such intense coercion to accept the bargain that their due process
rights are violated. Presumably, however, the plea-bargainer at least has
his or her own self-interest in mind. Thus, we must doubly worry that the
co-conspirator will be coerced to lie on the stand and cause an innocent
third party to be convicted. Furthermore, as was argued in the Singleton
case, there appears to be an explicit asymmetry that advantages the
prosecutor by allowing her to offer plea agreements when the courts forbid
opposing attorneys from giving anything to fact witnesses in order to
encourage them to testify.24
Again, structural features are likely to exacerbate the problem: the
state is most willing to offer an accomplice a good deal in exchange for

23 Steven M. Cohen, Effective Screening For Truth Telling: Is it Possible? What is True?
Perspectives of a Former Prosecutor, 23 CARDOZO L. REV. 817, 819 (2002) (“To most rational
criminal defendants…there is really no choice at all”).
24 Sheila Creaton, Plea Agreements: Progressing the Fight against Crime or Bribing
Witnesses?, 5 SUFFOLK J. TRIAL & APP. ADV. 37. See also J. Richard Johnston, Judicial
Nullification: Denial of Equal Access to Witnesses Is Denial of Due Process, 28 ALBERTA L.
REV. 20 (2004).
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testimony in cases where the evidence against the defendant is weakest,

and therefore the testimony is most needed. The weakness of the case
against the defendant and the increase in the amount of leniency offered to
the accomplice both increase the likelihood that the accomplice will lie. In
response, proponents may argue that witness testimony is frequently not
disinterested. We cannot bar a witness from testifying every time he or she
has something to be gained by conviction. Rather, it is a matter for the jury
to decide. The question, then, is whether a jury can be reasonably expected
to sift through the potential lies of an accomplice testifying in exchange for
leniency.

IV. A STANDARD FOR PERMISSIBILITY

In the previous section, I showed that there are strong reasons to allow
testimony given in exchange for a plea-bargain and that there are strong
reasons to be suspicious of such testimony. I will now propose a set of
safeguards, which will serve to minimize the risk of the harm that can come
from such testimony.

A. Disclosure and Cross-Examination

The single most effective way to ensure that a jury has the best chance
of correctly interpreting the testimony of a cooperating witness is by
requiring that all arrangements between the prosecution and the witness be
disclosed and by allowing the defense wide latitude in cross-examining the
witness, especially about the details of the cooperation agreement.25 This
transparency will allow for the defense to argue against the credibility of
the witness and to put pressure on the prosecution to produce sufficient
corroborating evidence.

B. Jury Instruction

Nevertheless, plea agreements can be complex and confusing, and

there is a significant risk that the jury will be too confused to reliably
determine the truthfulness of the testimony presented. To reduce the risk
that such confusion unduly benefits the prosecution, judges should provide
clear and careful instruction to the jury cautioning them to weigh the
witness’s testimony carefully and with extra scrutiny.26 In Alford v. United

25 See Giglio v. United States, 405 U.S. 150, 153-54 (1972) (the court ordered a new trial
because the prosecutor had no knowledge of, and therefore did not disclose during the trial, the
existence of a plea agreement between the government and witness).
26 See United States v. Insana, 423 F.2d 1165, 1169 (2d Cir. 1970); United
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States, the Supreme Court emphasized the defendant’s right to “place the
witness in his proper setting and put the weight of his testimony and his
credibility to the test.”27

C. Corroboration

As a result of the highly suspect nature of the testimony given in

exchange for a plea-bargain, a high standard of scrutiny is necessary. One
obvious, though rarely enforced, standard of evidence for such testimony is
corroboration. Juries should be instructed to disregard uncorroborated
testimony by witnesses participating in cooperation agreements.
Corroboration in this case does not merely mean producing additional
evidence that the defendant is guilty, but rather presenting specific
evidence affirming at least some of the relevant details of the testimony.28
However, legal scholar Graham Hughes has argued that such a requirement
is unlikely to serve as a significant safeguard because it is usually easy to
present evidence corroborating the claim that an accomplice was involved
in a crime, and it is therefore easy to argue that he is likely to have special
knowledge.29 Nevertheless, such a stipulation will at least partially shift the
burden on to the prosecution to establish the credibility of the witness.

D. Strictly Limited Contingency

Prosecutors have often sought to ensure that a witness continues to

cooperate on the stand by designing the plea bargain to be contingent on a
successful conviction or indictment. Such arrangements, called contingency
agreements, create an undue pressure on a witness to embellish or lie in
order to protect his or her plea-bargain, and, therefore, should be
considered impermissible. Hughes states, however, that contingency
agreements serve a valuable role in preserving the state’s interests. Clearly,
it would be unacceptable if a co-conspirator could accept a plea-bargain
after implicating his accomplice and then recant on the stand; the threat of a
perjury charge may be insufficient to deter such behavior. As a potential
compromise, plea-bargains should be contingent upon two conditions: (1) a

States v. Dailey, 759 F.2d 192, 200 (1st Cir. 1985).

27 282 U.S. 692 (1931).
28 See Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192 (1917). In Caminetti, the
Supreme Court acknowledged that it is “better practice for courts to caution juries against too
much reliance upon the testimony of accomplices and to require corroborating testimony before
giving credence to such evidence” but refused to overturn in response to the claim that the trial
judge failed to instruct the jury to disregard uncorroborated testimony: “there is no absolute rule
of law preventing convictions on the testimony of accomplices if juries believe them.”
29 Agreements for Cooperation in Criminal Cases, 45 VAND. L. REV. 1, 32 (1992).
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witness’s testimony on the stand must be materially consistent with his

statements at the time the bargain was proffered and (2) both statements
must be true. This last clause is particularly important; all plea agreements
should stipulate that perjury violates the agreement, thereby creating a
disincentive for lying on the stand.30 Furthermore, the terms and conditions
of the agreement must be specific enough that the prosecution does not
hold an implicit power over the accomplice during his testimony that
encourages him to embellish in favor of the prosecution.

E. Proportionality Condition

Finally, the agreement must meet some kind of proportionality

standard weighing the culpability of the plea-bargainer against that of the
defendant. The prosecutor must perform a calculus of some kind, weighing
both his obligation to protect the community from dangerous individuals
and his obligation to seek justice. Furthermore, he or she must be thrifty; he
or she must seek to minimize the loss of punishment sentenced to the
deserving accomplice. These stipulations are necessary to minimize
violations of our sense of due desert.

V. CONCLUSION

If these standards are met, the question safely shifts from the
admissibility of the testimony to the weight it should be given, which is
properly a question for the jury to settle.31 While there are risks associated
with cooperation agreements, the pros far outweigh the cons. For this
reason,we should implement strict measures to minimize the risks while
avoiding an all out ban on potentially valuable and crucial testimony from
countless cases.

30 See United States v. Dailey, 759 F.2d 192, 196 (1985) (suggesting all plea agreements
should stipulate that lying under oath violates agreement).
31 See United States v. Kimble, 719 F. 1253, 1257 (5th Cir. 1983) (reasoning that weight of
testimony is question for jury).