The agreements should be read to the jury and made available during
deliberations; defense counsel may cross-examine the accomplices at
length about the agreements; and the jury should be given the standard
cautionary instruction concerning the testimony of accomplices and a
special cautionary instruction concerning the nature of each accomplice’s
contingent agreement and the risk it creates, particularly in instances
where the accomplice’s testimony cannot be corroborated.79
The court in Dailey considered these measures sufficient to protect the defendant
in that case. However, defense attorneys do not have as much discretion in the
application of such measures as prosecutors have in drafting cooperation agreements.
A. Discovery of the Cooperation Agreement
As a matter of due process, the prosecution may be compelled to disclose any
exculpatory information to the defense, including the existence of witness
cooperation agreements.80 Defense attorneys request the details of such agreements,
and the cooperating witnesses’ criminal records, as a regular part of preparation.81
Federal prosecutors generally disclose such agreements even absent a specific
request.82
The Supreme Court, however, eroded the Brady principle in United States v.
Bagley.
83 In 1977, Bagley was indicted on fifteen charges of narcotics and firearms
violations. Before trial, defense counsel filed a discovery motion requesting, among
other things, “[t]he names and addresses of witnesses that the government intends to
call at trial, the prior criminal records of witnesses, and any deals, promises or
inducements made to witnesses in exchange for their testimony.”84
In response, the government disclosed a series of affidavits signed by its two
principle witnesses, but did not disclose that any deals or inducements had been
made.85 After Bagley’s conviction, however, he discovered copies of ATF contracts,
signed by the key witnesses, stating that the government would pay the witnesses
commensurate with the information furnished.86
The Supreme Court upheld Bagley’s conviction, reasoning
The agreements should be read to the jury and made available during
deliberations; defense counsel may cross-examine the accomplices at
length about the agreements; and the jury should be given the standard
cautionary instruction concerning the testimony of accomplices and a
special cautionary instruction concerning the nature of each accomplice’s
contingent agreement and the risk it creates, particularly in instances
where the accomplice’s testimony cannot be corroborated.79
The court in Dailey considered these measures sufficient to protect the defendant
in that case. However, defense attorneys do not have as much discretion in the
application of such measures as prosecutors have in drafting cooperation agreements.
A. Discovery of the Cooperation Agreement
As a matter of due process, the prosecution may be compelled to disclose any
exculpatory information to the defense, including the existence of witness
cooperation agreements.80 Defense attorneys request the details of such agreements,
and the cooperating witnesses’ criminal records, as a regular part of preparation.81
Federal prosecutors generally disclose such agreements even absent a specific
request.82
The Supreme Court, however, eroded the Brady principle in United States v.
Bagley.
83 In 1977, Bagley was indicted on fifteen charges of narcotics and firearms
violations. Before trial, defense counsel filed a discovery motion requesting, among
other things, “[t]he names and addresses of witnesses that the government intends to
call at trial, the prior criminal records of witnesses, and any deals, promises or
inducements made to witnesses in exchange for their testimony.”84
In response, the government disclosed a series of affidavits signed by its two
principle witnesses, but did not disclose that any deals or inducements had been
made.85 After Bagley’s conviction, however, he discovered copies of ATF contracts,
signed by the key witnesses, stating that the government would pay the witnesses
commensurate with the information furnished.86
The Supreme Court upheld Bagley’s conviction, reasoning
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