NYSACDLFall 2013 Trial Seminar

United States CourthouseBuffalo, NY

November 15, 2013

Trial Preparation and Cross-Examinationin Complex Criminal Cases:

We Reap What We Sow

Rodney O. Personius, Esq.PERSONIUS MELBER LLP2100 Main Place TowerBuffalo, NY 14202(716) 855-1050rop@personiusmelber.com

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. INFORMATION IS POWER - SOWING THE SEEDS. . . . . . . . . . . . . . . . . . . . . . . . 3

A. Leave No Stone Unturned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Discovery Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Relationship with the Prosecutor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. The Client.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

4. Motion Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

5. Contact with Counsel for Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

6. Joint Defense Arrangement with Co-counsel. . . . . . . . . . . . . . . . . . . . 6

7. Private Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8. Site Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

9. Freedom of Information Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10. Trial Subpoenas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11. Retention of Counsel for Prospective Witnesses. . . . . . . . . . . . . . . . . . 8

B. Formulate a Defense Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Pretrial Submissions: Motions in Limine and the Trial Memorandum.. . . . . 10

1. Motions in Limine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2. Trial Memorandum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

D. Other Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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II. PREPARATION FOR CROSS EXAMINATION - THE CULTIVATION PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. Reference Points. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Prior Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. Interview Reports and Related Notes.. . . . . . . . . . . . . . . . . . . . . . . . . 13

3. Trial Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4. The Plea Agreement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

5. Affidavits Accompanying the Criminal Complaintor Warrant Applications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

6. Criminal History of the Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

7. Statements of and Reports Related to Other Witnesses.. . . . . . . . . . . 16

8. Direct Testimony of the Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

9. Site Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

10. Manuals and Guidelines.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

11. Surveillance Logs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

12. Response of Witness to Prior Question. . . . . . . . . . . . . . . . . . . . . . . . 18

B. Mastering the Content of a Witness’s Prior Statement. . . . . . . . . . . . . . . . . . 19

C. Critically Reviewing Cross Examination Resources. . . . . . . . . . . . . . . . . . . . 21

1. Contradictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Equivocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3. What is Not Said. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4. Information Helpful to the Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . 22

5. Completeness of the Response.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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6. Indicators of Motivation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

7. Degree of Recollection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

8. Interaction of Prosecutor with Witness. . . . . . . . . . . . . . . . . . . . . . . . 24

III. THE HARVEST – CONDUCTING THE EXAMINATION. . . . . . . . . . . . . . . . . . . 25

A. Impeachment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. Nullification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

C. Mitigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

D. Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

E. Leveling the Playing Field. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

F. Laying Foundation for Later Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

G. Witness Responses During the Examination. . . . . . . . . . . . . . . . . . . . . . . . . . 28

H. Reinforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

I. The Power of Suggestion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

J. Diminishment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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INTRODUCTION

– You win cases with preparation, you lose them in the courtroom.

In the Southern Tier of New York State, the month of May 1982 brought daily sun-drenched

skies, with temperatures regularly in the mid to high 70s. It was an unprecedented stretch of fine

weather for late spring. That month was spent second-chairing a complex drug prosecution in

Steuben County. Not an ideal time to be involved in a lengthy trial, but opportunity seldom is

determined by convenience.

The defendant came from a hard-working family of Italian descent. He was intelligent and

gregarious, but not terribly ambitious. He liked the good life, and supported his ostentatious lifestyle

by selling powder cocaine and pills in a most open and notorious fashion. Few were surprised when

the BCI Division of the State Police came knocking. The end result was an armful of felony drug

charges. His devoted father wanted nothing but the best defense.

The trial was venued in the county seat at Bath, NY. The defendant had an uncle who

operated a bar 20 minutes down Route 17 in Corning. Above the bar was a well-appointed two

bedroom apartment. Jury selection was scheduled to begin on the first Monday in May. After weeks

of preparation, we packed up all of our trial materials, as well as enough personal items to carry us

through out expected four week stay in Steuben County. Arriving at the uncle’s apartment, we were

pleasantly surprised by its condition. Trial preparation continued almost immediately, with no break

for dinner. Bedtime for lead counsel was 9:00 pm; I stayed up another two hours on busy work just

to feel part of the team.

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It was a fairly sleepless night, tossing and turning in a strange environment with a major trial

on the horizon. Laughter and muffled music from the bar below interrupted the quiet of the night.

I finally did doze off, only to be awakened seemingly moments later by the sound of running water.

I ignored this distraction from my sleep for what this time seemed like hours, but must have only

been minutes. I then realized it was the shower in the apartment. Checking the clock in my room,

I discovered it was 4:15 am. By 5:00 am, lead counsel was back at the dining room table, preparing

for jury selection, opening statements, and cross examination of the People’s multitude of trial

witnesses. Little did I know at the time that this same grueling routine would continue for another

27 days. Four weeks later, after a relatively lengthy deliberation in a hopeless case, the jury returned

a verdict of guilty on all counts. The defendant was remanded. We then took our final 20 minute

ride back to the apartment, packed up all of our belongings, and said our goodbyes to the

disappointed family. Upon our return to Buffalo, we took the weekend off, only to return to the

office on Monday in order to make ready for the next battle.

Lead counsel was John W. Condon, Jr. He prepared for and tried every case as if it was his

last. John used fancy words in casual conversation, such as impeccable, exquisite, sterling, and

grand. Ironically, it was these very terms that defined his approach to criminal defense, both inside

and outside the courtroom.

Insight into John Condon’s approach to criminal defense litigation is embodied in the article

attached as Exhibit A, which was written late in his illustrious career, shortly before his retirement.

It provides countless valuable insights on the trial of a criminal case, which must always begin with

unfailing attention to detail at the preparation phase. In his words, “You win cases with preparation,

you lose them in the courtroom.”

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I. INFORMATION IS POWER - SOWING THE SEEDS

A. Leave No Stone Unturned

At the earliest stage of a client’s representation, steps must be initiated to identify and pursue

sources of information regarding not only the factual backdrop of the prosecution, but also the

identity, background, and available evidence associated with each individual who may later be called

as a witness at trial.

1. Discovery Materials

In a white collar criminal prosecution, it almost always will be the case that there will be

voluminous documentary discovery. With the advent of the digital age, these materials are most

often now provided on one or more electronic disks. The production of discovery in electronic

fashion, while convenient, poses challenges. The most important step to be taken when this

discovery is received is to immediately conduct a cursory review of what has been provided in order

to understand the vastness of the process of reviewing and organizing this data. Care must be taken

to not minimize this task due to the size of a disk, which can so easily be put away in a file and

forgotten about until several months or perhaps weeks before trial. Not only will insufficient time

then be available to become familiar with the voluminous contents of the disk(s), any opportunity

to conduct follow up related to either the substance or incompleteness of the disclosure will be lost.

As with voting, review and familiarization with provided discovery must be conducted early and

often.

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2. Relationship with the Prosecutor

Developing on a consistent basis a trusting relationship with members of the prosecutor’s

office has many advantages. The amount of information that can be acquired through informal

discussions and email cannot be overstated. There is no reason why fierce advocacy on behalf of

a client can only be accomplished by maintaining an adversarial relationship with opposing counsel.

The litigation process is stressful enough, without adding an acrimonious relationship with your

adversary to the mix. These same considerations apply to the agents and investigators who work on

the case. Every casual contact presents an opportunity to add to your fund of information regarding

the client’s case.

3. The Client

The client is often overlooked as a valuable source of information. Time should be taken at

the outset of the representation to meet with the client on one or more occasions in order to develop

a full understanding of the facts. In white collar cases, there is also often a need to become educated

on the industry, business, or other activity that is the focal point of the prosecution. Regular contact

should be maintained with the client throughout the representation. Each one of these contacts

presents an opportunity for something new to be learned about the case. The client should be

involved in the discovery review process, and then time taken to meet with the client to discuss the

results of each review. If a client raises 10, 20, or 30 useless suggestions followed by a single

valuable thought regarding the case, then the entire process has been a worthwhile endeavor.

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4. Motion Practice

Creativity can be used with motions as a means of acquiring information about the case.

Oftentimes, a motion to dismiss an indictment may, under controlling case precedent, represent a

futile endeavor on the merits, but still be worth pursuing due to the information that will necessarily

be included in the prosecution’s response. Of course, any opportunity to request a hearing, where

testimony will be taken, should never be bypassed. Again, even if a suppression motion directed

against a search and seizure or the acquisition of statements from a client appears hopeless, having

the opportunity to place one or more prospective trial witnesses on the stand, and to extract

testimony regarding circumstances pertinent to the prosecution, should not be overlooked. As well,

within reason, consideration should be given to pursuing areas having only an ancillary relationship

to the core issues of the hearing, but potentially germane to the eventual defense at trial. From a

standpoint of cross examination, there is no more valuable resource than prior sworn testimonial

evidence of a witness. Aside from their inherent value, motions in limine can also yield useful1

information regarding the prosecution’s evidence and theories.

5. Contact with Counsel for Witnesses

If expected prosecution witnesses are represented by counsel, time should be taken to contact

those attorneys to inquire about each witness’s expected trial testimony, as well as any deal entered

into between the witness and the prosecution. The worst that can happen is that the attorney will

Confronting eventual trial witnesses in the hearing context also provides an opportunity to1

size up the witness. See discussion, infra, at Section I.A.11. on retention of counsel for prospectivewitnesses.

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decline to discuss the matter. In this event, less than five minutes has been wasted pursuing this

opportunity. By comparison, if the attorney is willing to share information regarding the witness’s

cooperation and expected testimony, the information gathering process has been advanced.

6. Joint Defense Arrangement with Co-counsel

Regular contact should be maintained with counsel for any co-defendants. The availability

of either a formal or informal joint defense agreement enables these communications to extend to

a full sharing of what otherwise would be privileged information. Through these contacts, important

information about the case can be obtained, and ideas may be exchanged regarding matters such as

motion practice and trial strategy.

7. Private Investigation

Retaining a private investigator to pursue trial witnesses and other defense leads also should

be evaluated in every case. With limited exceptions, the prosecution does not have a right to place

a gag order on its witnesses. A resourceful investigator, armed with a full understanding of the

background facts and goals of the investigation, can yield extremely beneficial information. In the

context of these contacts, consideration should be given to not simply having the investigator

conduct an oral interview of the witness. If at all possible, a short statement by the witness on

critical points should be obtained or, in an appropriate circumstance, an agreement made that the

investigator will prepare a written report and then later meet with the witness in order to determine

the witness’s willingness to formally adopt the report. The value, of course, in taking these steps is

that the use of these materials at trial will be enhanced.

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8. Site Inspections

No matter the kind of case, relevant geographic or office locations should be visited. The

value of site inspections applies with equal force in white collar prosecutions. Knowing about

something as mundane as the layout of an office can be helpful in examining a witness at trial about

conversations that are claimed to have taken place in that setting. If the subject matter of the

prosecution is an industry or business, time should be taken to visit the site and obtain a full

understanding of the operation.

9. Freedom of Information Requests

In many cases, valuable information can be obtained using Freedom of Information laws.

If a regulatory agency has had oversight of an industry or business that is the subject of a

prosecution, request can be made for access to files regarding the agency’s historical regulation of

the operation. In cases where the activities of agents or investigators are called into question, this

disclosure device can be used to obtain manuals or guidelines setting out the rules applicable to the

conduct of law enforcement personnel.

10. Trial Subpoenas

Another useful disclosure tool, particularly once a trial date is set, is the issuance of a

subpoena duces tecum. On the federal side, the use of subpoenas in criminal cases is governed by

Federal Rule of Criminal Procedure 17. There are specific requirements that must be satisfied before

a subpoena may be used, and these factors need to be weighed before the subpoena is issued. See

generally United States v. Nixon, 418 U.S. 683 (1974). Oftentimes, it is necessary that the

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subpoenaed material be delivered to the Court, so that it is available to both sides. This circumstance

does not, however, represent a reason in most instances to overlook this resource. It should never

be presumed that your adversary will expend gobs of time reviewing what is produced. In most

instances, the prosecution is far too consumed preparing its witnesses and evidence for trial.

11. Retention of Counsel for Prospective Witnesses

In many instances, controlling the flow of information is as important as acquiring

information. In any case where counsel has the ability to retain one or more attorneys to represent

potential witnesses at the investigative stage of the proceeding, this step should be taken. The

liberties that law enforcement will take with an unrepresented, as opposed to a represented, witness

are marked. Having counsel present for interviews and preparatory sessions serves at least three

important purposes. First, the risk that the witness will be tricked, or somehow mistreated, is

minimized. Second, the presence of counsel reduces the chances that, either intentionally or

inadvertently, the interviewing agent will inaccurately record the information provided by the

witness. Third, the witness’s attorney is able to make a record of the interview, which can then be

shared with defense counsel. The use of counsel for witnesses continues to be of great value even

as the matter approaches trial, as oftentimes prosecuting counsel will schedule testimonial

preparation sessions with its witnesses in advance of trial. An additional benefit of retaining counsel

for expected trial witnesses is the opportunity it presents, through retained counsel, to meet with the

witness in advance of trial. Not only will this encounter prove substantively valuable as an avenue

for gaining a better understanding of the witness’s forthcoming testimony, it also permits defense

counsel to size up the witness in advance of trial. John Condon used to speak of trying a witness on

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for size. What he meant was getting to know what makes the witness tick, the witness’s

mannerisms, how the witness responds to questions, and the witness’s intellect. Knowing in advance

who your witness is can be a difference maker.

B. Formulate a Defense Theory

– Twenty-five years’ experience should never be one year’s experiencerepeated twenty-five times.

The preparation of every criminal case for trial should be centered around a theory of defense.

Trial preparation must be purposeful. The defense theory provides this purpose; it makes available

a foundation, which can then be used for preparing opening and closing arguments, devising a

strategy for cross examination, and making important decisions on evidence, if any, to be tendered

by the defense at trial. In most instances, the defense theory must include an answer to the “why”

question; that is, why is this defendant being charged? As well, the theory of defense should give

consideration to framing the expected trial evidence in a way that will cause trial jurors to pause

before passing judgment, with the prospect that this hesitation, no matter how momentary, will

blossom into a reasonable doubt.

Naturally, a defense theory can only be constructed once counsel has a complete grasp of the

evidence, both that to be offered by the prosecution at trial and that otherwise known to the defense

team. As well, the legal elements of each charge must be known. This means that all applicable jury

instructions pertinent to each charged offense must be accessed, analyzed, and understood well in

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advance of trial. Oftentimes, review of these instructions will give rise to further research of case

law regarding the elements of each offense, which may prove useful in fashioning a defense theory.

The Court should be educated on the right to present a defense. Annexed as Exhibit B is a

discussion of case law addressing this topic on both the federal and state levels.

The defense theory should not be overly involved or complex. It should be brief and to the

point, and should, if at all possible, carry a visceral quality that will impact the jury not only

intellectually, but also emotionally. The theory should be developed independent of what may have

worked in an earlier case. Save the shortcuts for crossing vacant lots. It is for this reason that John

Condon counseled against repeating the same experience twenty-five times in succession. Be both

dedicated and committed to creativity.

C. Pretrial Submissions: Motions in Limine and the Trial Memorandum

1. Motions in Limine

A motion in limine is a useful tool for not only limiting the prosecution’s evidentiary

presentation, but also for introducing the Court to evidentiary issues that may surface at trial. These

motions are often used in an effort to restrict the introduction of prior bad act or other unduly

prejudicial evidence against the defendant at trial. They can also, however, be used to address other

important evidentiary considerations, such as the scope of impeachment of prosecution witnesses

or the admissibility of evidence to be propounded by the defense during trial proceedings.

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2. Trial Memorandum

In all federal criminal cases, it is mandatory that a trial memorandum be filed. Consideration

should be given, however, to also submitting a pleading of this character in state prosecutions. The

memorandum serves at least two important purposes. It provides an opportunity to inform the Court

regarding the defense theory, as well as critical evidentiary or other issues that may surface at trial.

An informed trial judge is a happy judge. No one, including members of the bench, likes surprises.

Secondly, the discipline of preparing a trial memorandum forces counsel to carefully think through

the trial process in a more comprehensive way during the preparation phase, well in advance of jury

selection. This enables an informed decision to be made on the requisite components, as well as the

necessary timing, of trial preparation.

D. Other Considerations

Although not needed in every case, the preparation of a chronology is almost always a useful

tool both in the pretrial and trial contexts. Consideration may also be given to preparing a summary

of evidentiary goals, premised upon the defense theory, which identifies how, at trial, each

component of the defense theory will be established. For example, if that theory depends upon the

introduction of evidence, what witness will be used to introduce that evidence? Is there a way to

accomplish all of your evidentiary goals without the need to either put the defendant on the stand or

even present a defense case? Can the evidentiary goals, as is often the case, be established through

cross examination? If so, which witnesses can be used to establish specific components of the

defense theory? Depending upon the number of witnesses and complexity of the trial, consideration

may also be given to developing a personae list. Are there documents, including photographs, that

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are helpful to the defense and can be tendered as trial exhibits, ideally during cross examination of

the prosecution’s witnesses? It is well known that demonstrative evidence is compelling and can

have a persuasive impact on trial jurors.

II. PREPARATION FOR CROSS EXAMINATION - THE CULTIVATIONPROCESS

A. Reference Points

1. Prior Statements

By far the most valuable resource during cross examination is any prior statement of the

testifying witness. All the better if the statement is in the form of testimony, either before the grand

jury, during a felony or suppression hearing, or at a prior proceeding. It is for this reason that every

effort should be made to seize upon any opportunity to have an expected trial witness examined

under oath. Equally useful is any prior written statement of the witness, whether in the form of a

confession or an affidavit. Although rare, transcripts of intercepted conversations of the witness,

garnered during the investigation of the underlying matter, represent another resource. With the

ubiquity of computers, cellular telephones, and iPads, a whole new treasure trove of witness

statements has surfaced – emails, text messages, Facebook entries, and other forms of social media.

Steps should be taken to regularly inspect any social media sources having a limited shelf life. Data

from other, more permanent electronic or digital sources should also be periodically investigated.

The advent of the internet demonstrates that Art Linkletter was too shortsighted in coining the phrase

“Kids say the darnedest things.” Grownups do too.

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2. Interview Reports and Related Notes

Unless reviewed and expressly adopted by the witness, a report of interview, and any related

notes, may not be used to directly impeach a witness. On the other hand, these materials still have

great value as a device to refresh the recollection of a witness. In any instance when a report is being

used to refresh recollection, consider making it known to the trial jury that the source of the

document being used to refresh recollection was generated by a law enforcement official. If the

witness claims that his or her recollection was not refreshed after reviewing the document, the jury

is still likely to infer that the witness said something different to a member of law enforcement on

a prior occasion.

3. Trial Exhibits

Particularly in a white collar criminal prosecution, the multitude of exhibits marked by the

prosecution for trial provides another valuable source of information for cross examination. It may

be that these exhibits contain information which is useful to the defense, and can affirmatively be

brought to the jury’s attention during cross examination. On the other hand, these exhibits may

contain information that is contradictory to prior testimony or statements of one or more prosecution

witnesses. It is not enough to know in a general way what exhibits will be used by the prosecution

at trial. These materials need to be thoroughly reviewed and dissected during the preparation phase

with the same degree of attention as is given to a witness’s prior statements.

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4. The Plea Agreement

Particularly in federal prosecutions, cooperating witnesses will execute a written plea

agreement with the Government. These agreements usually contain different sections that each

provide a fertile ground for exploration during cross examination. Attention should be given to the

factual basis for the plea, which oftentimes does not conform to the evidence presented at trial or to

the direct testimony of the witness. These inconsistencies should be exploited during cross

examination. There will always be a section which speaks to the benefit the witness expects to

receive for cooperating. This, of course, needs to be brought to the jury’s attention. As importantly,

the plea agreement usually sets forth information on the penalties for the offense underlying the

guilty plea. As part of conveying to the trial jury the favorable deal made by the witness, this

information can be used to inform the factfinder of the significant jail time exposure being faced by

the defendant, which can act as a form of nullification or mitigation during the deliberation process.

The plea agreement should also contain information regarding who decides if the witness is telling

the truth, and the importance of truth telling. This information may be used to underscore the

witness’s desire to curry the Government’s favor. The Government usually reserves the right to

change its position regarding sentencing if new information is learned which varies from that

previously provided by the witness. This, it can be suggested through examination, creates a strong

incentive for the witness to continue telling the same story at trial. As well, in most instances, the

agreement will provide that sentencing is to be postponed until after the witness has completed

cooperating, which includes testifying at trial. This presents another incentive for the witness to

testify in a fashion that supports the Government’s case.

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5. Affidavits Accompanying the Criminal Complaint or Warrant Applications

Affidavits prepared by law enforcement personnel in applying for a search, arrest, or

eavesdropping warrant, or in connection with the filing of a criminal complaint, often contain

detailed information regarding the then available evidence linking the defendant to criminal activity,

as well as the prosecution’s theory of the case. As importantly, these documents will often contain

inculpatory information about other suspects, who later become cooperating witnesses. These

allegations need to be scrutinized in the context of preparing for cross examination of the

cooperating witness. Alternatively, if the witness is already cooperating, the supporting affidavit will

recite a summary of the cooperator’s version of the events. This summary needs to be compared to

other statements of the witness for the purpose of noting any inconsistencies. Oftentimes, it is

forgotten that these resources exist.

6. Criminal History of the Witness

It is a rule that the prior criminal record of any testifying witness must be made available to

the defense. Of course, not every prior conviction is a proper subject of impeachment at trial,

particularly on the federal side where this issue is governed by Federal Rules of Evidence 608 and

609. It is necessary to have a complete grasp of these rules. In most instances, the better tactic is

to address the scope of cross examination of a prosecution witness by prior conviction before the

witness takes the stand or, at minimum, before the commencement of cross examination. In either

event, the opportunity to make a reasoned presentation is enhanced, and the risk of an immediate

knee jerk ruling in the prosecution’s favor is reduced. Remember, no one, including the presiding

judge, likes surprises.

15

7. Statements of and Reports Related to Other Witnesses

The purpose of cross examination is not limited to impeaching the credibility of the testifying

witness. As is set forth below, there are multiple other purposes for asking questions during cross

examination. This opportunity can only be maximized if counsel has a complete grasp upon what

has been said about facts relevant to the case by other witnesses to be called by the Government.

Through cross examination of one witness, inherent contradictions can be established by exploring

events and transactions with one witness that are known will be in conflict with testimony on those

subjects to be given by a different witness. Because the standard controlling the outcome of the case

is reasonable doubt, and due to the fact there is no way to gauge which facts will be most important

to a given trial juror, maximizing the number of inconsistencies and contradictions placed before the

trial jury is critical.

8. Direct Testimony of the Witness

Careful attention must be given to the direct testimony of a witness who is to be cross

examined. Particular care should be used to identify any equivocation in the witness’s response to

questions. Naturally, any inconsistencies in the witness’s direct testimony, as compared to prior

statements or testimony of that witness, need to be noted. There is seldom, if ever, any time during

the course of trial to coast. In all cases, the direct testimony of a witness about to be cross examined

requires the attorney’s undivided attention.

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9. Site Inspections

As noted above, having a working knowledge of the physical environment where criminal

activity reportedly occurred or conversations were allegedly conducted is particularly valuable. It

is almost always the case that the layout of a location is different from what is conjured up by the

mind. The questioning of any witness proceeds with greater confidence if the examiner has a full

understanding of the physical context in which the circumstances underlying the witness’s testimony

occurred.

10. Manuals and Guidelines

If the witness is a law enforcement officer, there more than likely are written guidelines that

govern the handling of a particular matter. Invariably, these rules are not precisely followed. There

may be instances when these missteps by law enforcement are more than trivial, and deserve to be

brought to the attention of the trial jury. This determination can, however, only be made if, during

the preparation phase, the attorney has access to any written manuals or guidelines governing law

enforcement’s conduct. At times, this data may be obtainable through a colleague, or through an

informal request presented to the prosecutor. Other options for obtaining this information include

the issuance of a subpoena in advance of trial, or the pursuit of a Freedom of Information request to

the responsible police agency.

11. Surveillance Logs

In any case where police surveillance has been conducted, steps should be taken to obtain

logs memorializing what was observed, as well as any related notes, photographs, and videotapes.

17

This data should then be scoured for information regarding observations made by law enforcement

of the activities not only of your client, but also any confederates who are to testify on behalf of the

Government at trial. The more sources of information regarding a particular event that are available

for consideration, the greater the likelihood an inconsistency will surface.

12. Response of Witness to Prior Question

One of the more useful sources of cross examination is the responses of the testifying witness

to questions posed during the cross. This oftentimes represents the most fruitful segment of any

cross examination. The immediate past responses of a witness may provide an extremely valuable

source of impeachment because the entire process takes place directly in the presence of the trial

jury. Great care must be taken to closely listen to each response provided by the witness during cross

examination. The mind cannot wander; the eyes should not focus upon anything other than the

demeanor of the witness as each response is given. At times, this form of impeachment should be

undertaken immediately after an answer is given by the witness. There may, however, be occasions

where the response should be revisited at a later, more opportune point in the examination. There

is no set rule on timing.

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B. Mastering the Content of a Witness’s Prior Statements

Always remember the distinction between contribution andcommitment. Take the matter of bacon and eggs. The chicken makesa contribution. The pig makes a commitment.

– John Mack Carter

In most cases, the correlation between preparation time and courtroom time will be in the

neighborhood of five to one. In other words, for every one hour spent in the courtroom, at least five

hours must be spent in preparation. What largely determines the amount of required preparation time

is the quantity of resources available for cross examination. The greater the available resources, the

more effective in most instances the cross examination provided the necessary time has been

invested outside the courtroom to prepare for the examination. In a word, any effective cross

examination must be based upon a complete mastery of all available resources. In this context,

defense counsel must emulate the pig, not the chicken.

How does this process work? The answer depends upon the intelligence, experience, and

discipline of the examiner. Whatever approach is taken, it is imperative that, before approaching the

podium, the examiner have a complete knowledge of the available resources that may be relied upon

during the examination, as well as an ability to locate a given passage within any resource in

seconds.

One approach to this daunting task proceeds as follows. Any resource to be used during cross

examination, including without limitation prior statements of the witness, should be read one or two

times without any marking aids for the purpose of gaining a general understanding of what is

19

reflected in the document. It should then be read again using a highlighter, for the purpose of

narrowing down what are the pertinent portions of the document from a cross examination

perspective. The next review should focus upon identifying the subject matter of each segment of

the document that may be relied upon during cross examination. A further review would then,

within each identified topic area, underscore the specific portions of the document to be used during

cross examination. A final review would thereafter be used to develop some system for easily

referencing the impeachment sources within the document. This is, of course, only the preliminary

phase of the preparation process.

The next step is to prepare an outline of topics to be addressed during cross examination.

Care should be taken to begin each topic on a separate page since, depending upon how the direct

testimony is presented, there may be a need to change the order of the anticipated cross examination.

The purpose of the outline is to identify in shorthand form every topic to be covered during cross

examination, as well as the resources which may be used during the examination. The value of this

exercise is not limited to providing a guide of topics to be covered during the examination. The

exercise of writing out topic areas and impeachment reference points also reinforces the subject

matter in the examiner’s mind.

There will be times when the examination of the witness extends over a lunch recess or

evening. In this event, whatever time is available should be used to re-review the outline in

comparison to the witness’s direct testimony. In many instances, this review will result in changes

being made to the planned approach to the examination, making it more efficient and more effective.

The important point is that the cross examiner’s job is not done once the original outline is prepared.

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That is only a starting point for a process which continues up to the point when the final question

is asked during the cross examination.

There is a need for flexibility, of course, during the examination. Just because one page of

the outline identifies a topic for cross examination does not mean that topic needs to be addressed

during the examination. Oftentimes, during a trial, less is more. Be flexible.

C. Critically Reviewing Cross Examination Resources

The following represent non-inclusive examples of the types of information, useful during

cross examination, that may exist within a given resource.

1. Contradictions

Developing contradictions or inconsistencies within a witness’s own testimony, or between

witnesses, or in the prosecution’s theory, is in almost every instance a worthy endeavor. It is only

through a repeated review of available resources that these inconsistencies and contradictions can

be identified. What becomes at trial an important contradiction may arise from what appeared during

the preparation phase to have been a seemingly trivial fact, which only serves to underscore the

importance of gaining a full understanding of each cross examination resource. In almost every

instance when a witness testifies on direct examination, additional inconsistencies will surface in

comparison to the available cross examination resources. Counsel will only be able to identify and

take advantage of these inconsistencies if the contents of all available resources have been

completely mastered. Absent adequate preparation, these important opportunities to demonstrate

contradictions will be lost.

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2. Equivocation

Whether in existing resources, or during a witness’s testimony on direct or cross examination,

instances of equivocation need to be exploited. Any indication the witness is less than certain as to

a particular fact should be brought to the jury’s attention. Again, remember that the controlling

standard in a criminal case is reasonable doubt. If a prosecution witness has a doubt with respect to

a matter of importance, so too should the factfinder.

3. What is Not Said

In responding to a particular question, what the witness does not include in his or her

testimony may be as important as what is said. This is particularly important when, as is often the

case, the prosecution seeks to either overstate or misstate the importance and implications of a

witness’s testimony. Cross examination can then be used to confirm that the misplaced argument

of the prosecution premised upon the witness’s testimony is not worthy of consideration. Don’t

allow the prosecution to get away with even a single unfair characterization of what the witness

knows about the facts or your client.

4. Information Helpful to the Defense

As noted above, cross examination is not limited to destroying a witness’s credibility. In

many instances, the witness may have information which is, in some fashion, useful to the defense.

This information should be earmarked for use in the event, during cross examination, the witness

strays from earlier helpful testimony on a particular topic. As appropriate, that resource can be used

to either refresh the recollection of, or impeach, the witness.

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5. Completeness of the Response

Particularly in the case of prior statements of a witness, a determination has to be made

regarding whether the response of or information provided by the witness is incomplete. If the

available resource reflects what the witness has said on a topic is the entirety of the witness’s

recollection, this should be noted, as that resource can then be used at trial in the event the witness

decides to expand upon his or her earlier statements on the same subject to the disadvantage of your

client. If the response of the witness in the resource is incomplete, consideration should be given

to why that is the case. Is this a reflection on the witness’s lack of knowledge, or does the witness

have some motivation for not providing additional details on the subject?

6. Indicators of Motivation

Whenever determining where the truth lies, or does not lie, we take into consideration the

motivation of the proponent of a particular fact. On a broader scale, this is why prosecutors

invariably attempt to inject a defendant’s claimed motivation as part of its theory of guilt. In the case

of witnesses, even if it is not possible to impeach the substance of the witness’s testimony, the

willingness of the factfinder to even consider that testimony can be undermined by drawing attention

to facts causing the witness to testify in a particular fashion, usually favorable to the prosecution.

Accordingly, in reviewing cross examination resources, special note must be given to any indicators

of motivation (such as seeking to curry the Government’s favor).

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7. Degree of Recollection

In any prior statement of a witness, what degree of detail is provided as to events implicating

the client in criminal activity? Does the statement contain information as to important details

tending to reinforce the credibility of what is being said? Are important details omitted or, better

yet, do the details misalign in successive statements on the same subject matter. Can information

on the same subject matter from the prior statements of another witness be usefully compared to that

of the witness to be cross examined as a means of establishing yet another inconsistency in the

prosecution’s case?

8. Interaction of Prosecutor with Witness

In the case of transcripts of prior testimony, is there anything in the introductory comments

by the prosecutor, or preliminary colloquy between the prosecutor and the witness, suggesting

collusion or bias? Do the prosecutor’s questions lead the witness in a fashion that is unfair? During

the witness’s testimony, is there evidence of a break or recess, followed by later testimony which

differs in some substantial way from the witness’s prior responses? Is there anything in the

prosecutor’s questions to suggest that the witness in being threatened or coerced into providing

particular testimony? Any of these circumstances may form a proper basis for cross examination,

although care should be taken to avoid putting the prosecutor on trial unless absolutely warranted

by the evidence.

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III. THE HARVEST – CONDUCTING THE EXAMINATION

Cross - examination is the principal means by whichthe believability of a witness and the truth of his orher testimony are tested.

Davis v Alaska, 415 U.S. 308, 316 (1974).

The single goal most often associated with cross examination is impeachment of the

credibility of the witness. There are, however, countless other purposes that may be served by

engaging in this exercise. Impeachment may be the most invigorating and provide the greatest

theater, but there are other goals that merit consideration both during the preparation phase and at

the time of the actual examination. Choices on where to go with a given witness will, however, be

determined by the thoroughness and precision of the preparation. The following represent examples

of the goals that may be served by cross examination.2

A. Impeachment

Impeachment is, as noted, the most commonly recognized purpose served by a cross

examination. This avenue may be pursued by highlighting contradictions or inconsistencies in the

It is always important to evaluate whether or not a particular witness should even be2

questioned. If the only purpose to be served is to reinforce adverse testimony provided on direct,then what is the point of the examination? If the witness does not hurt your client during directexamination, is there any real benefit in pursuing a line of impeachment? A colleague has remarkedthat nothing is always a good thing to do, and often a good thing to say. If you do elect to examine,a second, important point: leave the last question for closing argument. Many a fine crossexamination has completely unraveled at the hand of one question too many.

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witness’s testimony, past misbehavior serving to render the witness unworthy of belief, or a bias

either against the client or in favor of the Government. Attached as Exhibit C is a pleading which

addresses case law on the scope of permissible impeachment of a prosecution witness on the subject

of bias. How impeachment is handled is a matter of style. It need not involve a raised voice nor a

pointed finger to be effective. Care should be taken to ensure that predicate questions are asked

providing a basis for impeachment, as opposed to refreshing recollection. Beginning a question with

“Do you remember,” does not suggest an intention to impeach; rather, it is directed to the witness’s

memory. Avoid this trap.

B. Nullification

Directly seeking to nullify a trial jury is not permitted. This does not mean that steps cannot

be taken during trial to suggest that the jury pause before convicting your client on a ground having

more to do with fairness or sympathy than logic. In the case of a cooperating witness, it is almost

always possible to convey to the trial jury the witness’s sentencing exposure both before and after

striking a deal with the prosecution. It is the “before” part which may serve the nullifying purpose,

providing the factfinder with a glimpse into the punishment to be faced by the defendant if

convicted. In a federal case, depending upon the intellect of the witness, the plea agreement may

also be used to educate the trial jury regarding the operation of the United States Sentencing

Guidelines, including the criteria used in assigning the all-important offense level and the mandated

jail time associated with a that offense level.

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C. Mitigation

If the witness has knowledge of the defendant’s background, or family circumstances, cross

examination may present an opportunity to convey this important information to the factfinder

without the need to put the defendant on the witness stand. A particular defense may also be aided

by questions asked during cross examination.

D. Education

Particularly in white collar criminal prosecutions, consideration should be given at any early

stage of the proceedings to using a Government witness to educate the trial jury about one or more

important background facts, or other circumstances germane to the prosecution. The witness may

have knowledge regarding the business or industry which is the backdrop for the prosecution.

Consider using an early Government witness on cross examination as an opportunity for you to be

the one who is the first to answer the jury’s questions regarding the surrounding circumstances of

the prosecution. In a sense, make the prosecutor’s witness your own witness. Introduce these

important facts on your terms.

E. Leveling the Playing Field

Trial jurors, in most cases, begin the trial by identifying with the prosecution and law

enforcement. This is neither improper nor unexpected. Cross examination may provide a means for

demysticizing the jurors’ perception of your adversary. Care must be exercised to not engage in any

improper ad hominem attack; however, if there is a way to use your examination to put the

Government on trial, that tactic merits serious consideration. One example of this strategy is to

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explore with a police witness the law enforcement techniques not undertaken during the

investigation, weaving into your questions the suggestion that use of these techniques would have

more reliably demonstrated whether or not the defendant is guilty.

F. Laying Foundation for Later Testimony

Through thorough preparation, it should become apparent that building blocks to be used

with a later witness must be put in place with the testimony of an earlier witness. Consider using

cross examination for this purpose. If facts known to the witness being questioned will become

important in the examination of a later witness, bring out those facts during the cross examination

process of the earlier witness.

G. Witness Responses During the Examination

The discussion, above at Section II.A.12., includes mention of the importance of listening

carefully to each response given by a witness during cross examination. Either immediately after

a particular response is given or, at a later time during the examination, that response may provide

fertile ground for further examination. This technique can be extremely effective with a trial jury

as all phases of the impeachment take place contemporaneously in the jury’s presence.

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H. Reinforcement

There certainly will be instances when a trial witness provides testimony on direct

examination that is in some fashion helpful to the defense. Consideration should be given to again

drawing out this testimony during cross examination.

I. The Power of Suggestion

There will be instances when either an affirmative or negative response to a question will do

no harm. The witness will be directly impeached by an affirmative response to a question, and

inferentially impeached by a denial. In the proper context, usually in the case of a cooperating

witness, this technique can be very effective. Even a denial plants the seed in the jury’s mind that

the witness has a nefarious purpose.

J. Diminishment

If it is known that, at a later point in the prosecution’s case, facts will be disclosed that are

harmful to your client, and cross examination of an earlier witness presents an opportunity to bring

that fact to the jury’s attention, consideration should be given to taking the sting out of this evidence

by first raising it on your examination of the earlier witness. It is entirely possible that the jury as

a whole will place less emphasis upon the importance of that evidence if it is first drawn out by the

defense.

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CONCLUSION

There is no mystery to the trial of a complex case. The number of hours to be spent in the

courtroom will necessarily increase proportionally the number of hours that must be spent on

preparation. Mastery of the facts is essential. By taking a disciplined, methodical approach to the

prosecution’s case at a early stage, the framework for proper preparation will be in place. As the trial

date approaches, there must then be a commitment to excellence, what John W. Condon, Jr. might

characterize as exquisite, impeccable, sterling, or, perhaps, grand preparation of your case for trial.

Only then will you be ready in a truly meaningful way to fight the good fight in the courtroom.

Rodney O. Personius, Esq.PERSONIUS MELBER LLP(716) 855-1050rop@personiusmelber.com

30

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORK____________________________________

UNITED STATES OF AMERICADEFENDANT [REDACTED]

v. SUPPLEMENTAL PRETRIAL MEMORANDUM

[REDACTED], et al.Cri. No. [REDACTED]

Defendants.____________________________________

INTRODUCTION

This submission is intended as a supplement to Defendant [redacted] Pretrial Memorandum,

dated July 30, 2012 [Doc. No. 308]. Since receiving Jencks Act, 18 U.S.C. §3500, and Giglio (405

U.S. 150 [1972]) materials on September 14, 2012, there have been ongoing discussions with the

Government regarding the completeness of that production. While the degree of cooperation among

counsel regarding trial preparation-related issues continues to be extraordinary, it is apparent that the

Government, acting through Assistant United States Attorney [redacted], and the defense do not hold

the same view regarding the permissible scope of impeachment of a cooperating government witness

for bias.

As has been stated in the past, one of the critical components of Mr. [redacted]’s theory of

defense is that many of the cooperating witnesses who will testify at trial on behalf of the

Government are not telling the truth, and are misstating the evidence as a means of currying favor

with the Government. Stated otherwise, being positioned to fully test the credibility of the

Government’s witnesses is crucial to Mr. [redacted]’s defense strategy.

ARGUMENT

As a general proposition, bias impeachment is always relevant. “The partiality of a witness

is subject to exploration at trial and is ‘always relevant as discrediting the witness and affecting the

weight of his testimony.’ 3A J. Wigmore, Evidence s 940, p. 775 (Chadbourn rev. 1970). We have

recognized that the exposure of a witness’ motivation in testifying is a proper and important function

of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316

(1974) [Citation and footnote omitted.]

It is not difficult to understand why witness bias is universally acknowledged as a proper

subject of cross-examination, particularly when the relationship being explored is between the

witness and the Government:

Bias is a term used in the “common law of evidence” to describe therelationship between a party and a witness which might lead thewitness to slant, unconsciously or otherwise, his testimony in favorof or against a party. Bias may be induced by a witness’ like, dislike,or fear of a party, or by the witness’ self-interest. Proof of bias isalmost always relevant because the jury, as finder of fact and weigherof credibility, has historically been entitled to assess all evidencewhich might bear on the accuracy and truth of a witness’ testimony.

United States v. Abel, 469 U.S. 45, 52 (1984).

Bias may arise as a result of the witness’ relationship with the Government even in the

absence of an express understanding of what consideration the witness will receive in return for

cooperating with the Government. For example, in United States v. Bagley, 473 U.S. 667 (1985),

a government witness entered into a specific agreement with the Department of Alcohol, Tobacco,

and Firearms which provided that, in exchange for cooperation, “‘the United States will pay to said

vendor a sum commensurate with services and information rendered.’” 473 U.S. at 671. In response

2

to a defense request for all inducements offered to the Government’s witnesses, this agreement was

not disclosed. The Supreme Court found that the non-disclosure of the ATF agreement constituted

error, reasoning that “[t]he fact that the stake was not guaranteed through a promise or binding

contract, but was expressly contingent on the Government’s satisfaction with the end result, served

only to strengthen any incentive to testify falsely in order to secure a conviction.” Id.

The Second Circuit had arrived at the same conclusion five years earlier in DuBose v.

Lefevre, 619 F.2d 973 (2d Cir. 1980). The evidence revealed that the Government’s cooperating

witness had been promised that the state prosecutors would “do the right thing” in exchange for her

testimony against the defendant. 619 F.2d at 978. At trial, the state prosecutor argued that no

agreement had been entered into with this witness. The Second Circuit disapproved of this conduct,

and noted the following:

The prosecution cannot, by keeping its promises or consideration toa witness general in language or tone, escape the fact that it gives thewitness reason to believe that his or her testimony will lead tofavorable treatment by the State. Unquestionably agreements ingeneral terms to reward testimony by consideration create anincentive on the witness’ part to testify favorably to the State and theexistence of such an understanding is important for purposes ofimpeachment.

619 F.2d at 979. Finding a violation of constitutional magnitude, the defendant’s conviction was

reversed.

Crucial to unearthing witness bias is not what has been either represented or not represented

by the Government, but rather what belief has been formed in the mind of the witness regarding

reward for cooperation based upon the statements or actions of law enforcement personnel, including

the prosecutor:

3

In attempting to establish the motives or bias of a witness againsthim, a defendant may not only elicit evidence showing that thegovernment made explicit promises of leniency in return forcooperation, but may also show conduct which might have led awitness to believe that his prospects for lenient treatment by thegovernment depended upon the degree of his cooperation. Actionsevidencing the intention of the government to trade leniency forcooperation are, however, irrelevant unless it can be established thatthe witness knew of these actions.

United States v. Campbell, 426 F.2d 547, 549 (2d Cir. 1970). This concept continues to be viable.

In United States v. Salem, 643 F.3d 221 (7 Cir. 2011), the Court observed that the Government’sth

cooperating witness’ “understanding of an informal tit-for-tat arrangement could be enough to show

bias, even without evidence of an actual agreement between him and the government.” 643 F.3d at

228.

The central significance of a cooperating witness’ belief carries over to cases where it is

undisputed that the prosecution does not even have the ability to confer the benefit sought by the

witness. In Lindh v. Murphy, 124 F.3d 899 (7 Cir. 1997), an expert witness called by the Stateth

during the mental-condition phase of a death penalty case faced, in an unrelated matter, both the loss

of his license and incarceration due to having sexually abused his patients. The Court found that the

defense should have been permitted to explore on cross-examination the witness’ misconduct in the

unrelated matter, based upon a bias rationale, notwithstanding that the prosecutor involved in the

hearing was shown to not have the ability to influence the decision-making of the prosecutor

handling the unrelated investigation of the witness:

Lindh could have used the excluded evidence in two ways: first toshow that Roberts had a reason to be biased in the prosecutor’s favor,hoping that helpful testimony would mitigate his criminalpunishment, even though the Dane County prosecutor (who chargedLindh) could not directly influence the Milwaukee County prosecutor

4

(who was conducting the investigation of Roberts); second, to showthat the background information used to add luster to Roberts (andhence weight to his testimony) was misleading.

124 F.3d at 900. The Seventh Circuit agreed with Lindh’s counsel that the absence of any evidence

of a deal between the witness and the Milwaukee County prosecutor was of no moment. “But

Roberts may have believed that testimony helping the prosecution in this case, which achieved

notoriety throughout Wisconsin, would aid his cause, if only because it was bound to come to the

attention of the judge who presided in the prosecution against him.” 124 F.3d at 901.

The source of a witness’ bias is not necessarily limited to the witness’ cooperation against

a defendant who is on trial. The existence of criminal exposure arising from an unrelated matter may

well motivate an individual to not only offer cooperation with respect to that matter, but also

constitute an inducement to cooperate in other matters. In other words, the witness might, with some

justification, believe that cooperation in other matters will inure to the witness’ benefit at the time

a charging decision is made regarding the separate, unrelated matter where the witness has criminal

exposure. See, e.g., United States v. Martin, 618 F.3d 705, 728 (7 Cir. 2010). th

As well, even evidence of a past cooperative relationship with the Government is relevant

to the issue of bias. For example, in United States v. Leja, 568 F.2d 493 (6 Cir. 1977), the Courtth

reasoned as follows in concluding that evidence of an informant’s past relationship with the

Government, from a perspective of forming the basis for an expectation on the part of the informant,

constituted a proper basis for bias impeachment:

The best answer to the relevance and, indeed, the vital nature of theinformation which the defense sought to elicit comes from theappellant’s argument that it was not the pay for the immediate casewhich was so important as the expectation based on past experience,

5

which acts as such a powerful motive for the informer to distort oreven to fabricate.

568 F.2d at 498. Continuing, the Court observed that “the evidence of how much Mr. Sawicki was

receiving from the government for past services and might therefore expect in the future was highly

relevant to the question of his potential bias and interest.” 568 F.2d at 499.

On this topic, the observation of the Second Circuit in the context of an expert witness’ past

relationship with the Government is apt:

The district court may be right in holding that the testimony doesn’tshow bias; however, it does show a possibility, or perhaps even aprobability, of bias. We find substantial merit in Judge Engel’sstatement in United States v. Leja, 568 F.2d 493, 499 (6 Cir. 1977),th

that evidence of what a witness received from the Government forpast services and might therefore expect in the future is “highlyrelevant to the question of his potential bias and interest.”

885 F.2d at 109-1010.

CONCLUSION

A criminal defendant’s ability to explore the bias of a government witness is by no means

restricted to the witness’ cooperation in the matter for which the defendant is on trial, nor is the

exploration of bias framed by the existence of a specific understanding as to the reward the witness

may expect to receive for cooperating. What is important are the beliefs of the witness, which may

be premised upon non-specific, more generalized or even cryptic statements or actions of the

Government, the fears and expectations of the witness with respect to the witness’ exposure in a

wholly unrelated matter, and the past history of rewards received by the witness in exchange for

cooperation. It will be the intention of the defense to pursue bias impeachment of the Government’s

6

witnesses at trial with these concepts in mind. Given the importance of the jury’s assessment of

witness credibility to the outcome of this trial, having the ability to fully and properly explore areas

of potential bias will represent a crucial component of Mr. [redacted]’s theory of defense.

Dated: Buffalo, New YorkSeptember 28, 2012

_________________________Rodney O. Personius, Esq.PERSONIUS MELBER LLPAttorneys for Defendant [REDACTED]2100 Main Place TowerBuffalo, NY 14202(716) 855-1050rop@personiusmelber.com

TO: AUSA [redacted]U.S. Attorney’s OfficeFederal Centre138 Delaware AvenueBuffalo, NY 14202

[redacted]Attorneys for Defendant [REDACTED]

7