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. 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.
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. Courts have
repeatedly acknowledged the witness’ strong motive to lie under such
circumstances. 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. 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