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Hastings Law Journal

Abstract

In this Article, Judge Trott offers a step-by-step guide to avoiding the many pitfalls facing prosecutors using criminals as witnesses. Because prosecutors cannot choose the company that criminals keep, they must frequently be prepared to deal with snitches, accomplices, and informants in making a case against a defendant. These witnesses frequently have the best, first-hand knowledge of the defendant's criminal activities to offer. However, because of their inherent conflicts of interest, these witnesses can sometimes ruin a case rather than support it.

Using newspaper reports from around the country, Judge Trott illustrates how criminal witnesses can turn an otherwise strong case sour when they are not handled carefully by prosecutors and their investigators. Juries are predisposed to dislike and distrust such turncoats, and a skillful defense attorney can spread this distrust to the prosecutor as well. Using these witnesses can also involve the prosecutor in thorny ethical issues when the witness may still be involved in criminal activity, have ongoing contact with the defendant, or proceed without the advice of counsel. To combat this, Judge Trott shows how to carefully and methodically plan the use of criminal witnesses, from the initial contact, to formulating a cooperation agreement, to preparing for trial and making the closing argument to the jury.

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