The Pitfalls of Dealing With Witnesses in Public Corruption Prosecutions

Abstract

Public corruption cases are, at their core, about intent, whether an official acted corruptly in accepting a benefit and whether the payer sought to influence or reward the exercise of governmental authority. Prosecutions in this field often revolve around the testimony of cooperating witnesses who can explain the reason for the offer of money or some other benefit, and the attitude and viewpoint of the official who accepted it. For the defendant, especially an elected official, there will be a powerful urge to testify to explain to a jury why the person acted in a way that triggered criminal charges. When a public official is accused of corruption, testifying at trial may well be the one - and perhaps final - chance to save a career.Given the importance of testimony about intent, the role of witness preparation will be prominent in the public corruption trial. The professional responsibility rules say little about that process of witness preparation beyond prohibiting a lawyer from offering false evidence. Witness preparation is not only accepted, but even viewed as necessary in the representation of a client. Yet, there comes a point when the preparation can slide into creating evidence, but where is that line. Moreover, even if the preparation is acceptable, how should a lawyer react when the witness - whether a cooperator or the defendant - adds details or embellishes a story to strengthen the presentation of the case. In this short essay, I raise the question of how the lawyer should respond when the rules of the profession tell us so little about what is and is not permissible.