How to Cross-Examine the Witness Who is in the Prosecutor’s Pocket
If a Boston criminal defense attorney has been practicing for any length of time, he well understands that it is common practice for prosecutors to make deals with witnesses in exchange for their testimony. The prosecutor may have agreed to a written deal establishing immunity for the witness, guaranteeing a plea bargain on lesser charges, or promising a positive word from the prosecutor at the witness’s own sentencing. Your Boston defense lawyer must know how to effectively cross-examine these witnesses to expose their incentive to please the prosecution.
When I know that a witness has made a deal with the prosecutor, I confront him with the following:
- He is facing criminal charges of his own; if he is convicted or pleads guilty, he is facing a mandatory minimum prison sentence of years.
- The evidence against him, in his own case, is overwhelming;
- The prosecutor in the present case is the same prosecutor who will be handling his criminal case;
- The prosecutor can reduce the charges;
- Whether or not to reduce the charges is within the prosecutor’s sole discretion;
- His own attorney has no means to force the prosecutor to reduce the charges;
- A judge has no authority to reduce the charges or to force the prosecutor to reduce the charges;
- If the prosecutor does not reduce the charges, the judge will have no choice but to impose the mandatory minimum sentence;
- The witness and the prosecutor have signed an agreement, without the involvement of a judge or a jury;
- Pursuant to this agreement, the prosecutor will reduce the charges against him and recommend a substantially reduced sentence — if he fulfills his part of the agreement by providing substantial assistance to the government in its efforts to obtain a conviction against the defendant by testifying against him;
- The prosecutor alone determines if he has provided substantial assistance;
- If the prosecuter determines that he has not provided substantial assistance to the government with his testimony, the agreement is invalidated;
- Neither he nor his criminal attorney can force the prosecutor to conclude that he provided substantial assistance; and,
- If he fails to impress the prosecutor with his testimony, he will be sentenced to the statutory mandatory minimum sentence.
These facts, taken as a whole, should discredit the witness in the eyes of the jury. Even if the witness has not yet explicitly reached an agreement with the prosecutor, these questions can be modified to demonstrate that witness’ testimony is motivated by the prospect of a sweetheart deal.
Kevin J. Mahoney is a Boston area Criminal Defense Lawyer and author of the best selling book, Relentless Criminal Cross-Examination.
Kevin Mahoney
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