The Dailey court summarily applied the same reasoning and deemed the testimony admissible. The court acknowledged the risk of perjury inherent in the contingent agreement, but deemed it no greater than it was in Kimble or other like cases.74 Finally, the court concluded that the “traditional safeguards” against perjury—reading the agreement to the jury, cross-examination of the cooperating witness, and cautionary jury instructions from the court regarding the testimony of accomplices—were adequate to protect Dailey’s rights.75
The assurances against perjury cited in Dailey and Kimble are clearly overrated. Criminal defendants enter into cooperation agreements to reduce or avoid the penalties for their crimes. When the penalty at issue is jail time, the witness testifies to preserve his personal, physical freedom—essentially, his life.76 Courts have repeatedly acknowledged the witness’ strong motive to lie under such circumstances.77 On the other hand, the witness’ testimony does not seem to be comparably swayed toward truthfulness by the threat of being caught in a lie and charged with perjury.78 Therefore, the efficacy of protection from false testimony apparently hinges on the Dailey “traditional safeguards,” and particularly, on the defendant’s right to cross-examination. However, while the government’s discretion in drafting cooperation agreements has vastly expanded, the methods a defendant may use to expose a witness’ possible biases have not kept pace.
IV. FLUSHING OUT FALSE TESTIMONY
A witness who testifies pursuant to a cooperation agreement is furnished with incentives to lie beyond his personal biases and reservations. When the government either creates or sharply enhances its own witness’ motivation to lie, adversarial fairness requires special safeguards to protect defendants. Dailey listed the “traditional safeguards” as follows: