Defense witness as "accomplice": should the trial judge give a "care and caution" instruction?

• Author: Fishman, Clifford S.

INTRODUCTION

The accomplice is a familiar figure in America's criminal justice system.

Several people are arrested--perhaps all at once, perhaps over a period of days, weeks, months, or even years--and charged with concerted criminal activity. Whether the case involves a single, finite crime committed by two or three perpetrators, or a wide-ranging conspiracy that involves numerous crimes over many months or years, the odds are that, at some point prior to trial, the prosecutor will offer a deal to one or more of the suspects: admit your guilt, testify for the state against the others, and receive a substantial break as to charges, sentencing or both. (1)

Accomplice testimony in a criminal trial is highly relevant and, often, essential in the prosecution of crime, particularly organized crime, white collar crime, and political corruption. Given the accomplice's obvious motive to tailor his or her testimony to satisfy the prosecutor, however, such testimony is also quite often of questionable reliability. Accordingly, lawmakers have sought to safeguard against false convictions based on such testimony. Some jurisdictions require such testimony to be corroborated; (2) some require the judge to issue a cautionary instruction to the jury about how to evaluate such testimony; (3) and some jurisdictions require both measures.

But what about the reverse situation? Suppose someone who has already been convicted of the crime or conspiracy, or who has not yet stood trial, testifies at the defendant's trial as a defense witness, acknowledges his own criminal involvement, but insists that the defendant was not involved or was an innocent dupe?

At least three federal circuits have approved a trial judge's decision to give a cautionary accomplice testimony instruction when an alleged accomplice testifies for the defendant. (4) Several state courts and at least one military court have done likewise. (5) Other state courts, in contrast, have explicitly disapproved giving such an instruction (6) and courts in at least one state are divided on the issue. (7)

Part I of this article briefly reviews how courts have traditionally determined whether a prosecution witness is an "accomplice," and will provide representative samples of cautionary instructions. Part II will examine the federal decisions (8) upholding giving a similar instruction when the prosecutor claims that a defense witness is an accomplice and will show that several United States Supreme Court decisions which are frequently cited as supporting the practice do not really do so. (9) Part III will argue that, except perhaps in very rare cases, it is not appropriate to give such an instruction about a defense witness.

1. DEFINING "ACCOMPLICE": INSTRUCTING THE JURY ABOUT PROSECUTION ACCOMPLICE-WITNESSES

   1. DEFINING "ACCOMPLICE"

      For purposes of the issues discussed in this article, an accomplice is generally defined as a witness who, because of his or her involvement, could have been charged with or convicted for the same offense for which the defendant is being tried. (10) Thus, as a matter of law, someone who was charged with the same crimes as those for which the defendant is currently being tried is generally considered an accomplice. (11) Someone who admits having committed that crime with the defendant is also considered an accomplice. (12)

      Otherwise, the burden of proving that a witness is an accomplice is on the defendant. (13) Thus, for example, if a state witness admits participating in the acts in question, but claims lack of criminal intent, whether he was an accomplice is an issue for the jury to consider. (14) Mere presence at the scene of a crime, absent more, is not sufficient to make one an accomplice as a matter of law. (15) Complicity in a related offense generally does not suffice to categorize a witness as an accomplice, (16) although exceptions to this rule do exist. (17)

   2. "CARE AND CAUTION" INSTRUCTIONS: ACCOMPLICE AS PROSECUTION WITNESS

      A substantial number of American jurisdictions require a trial judge to give a special jury instruction when an accomplice testifies as a prosecution witness. Such instructions use a variety of terms in advising juries how to assess such testimony. The words "care" and "caution" appear perhaps most frequently, but other cautionary words such as "suspicion" also appear. (18) Other formulations are also used. (19) In some jurisdictions, the instruction is discretionary. (20) In others it is mandatory. (21) And some jurisdictions reject the propriety of such instructions altogether. (22)

2. FEDERAL DECISIONS UPHOLDING ACCOMPLICE INSTRUCTIONS CONCERNING DEFENSE WITNESSES

   In 1971, in United States v. Nolte, (23) the Fifth Circuit endorsed the practice of providing a cautionary accomplice instruction about a defense witness's testimony. (24) Apparently, this was the first federal circuit decision to do so, and remains the most widely cited federal or state case supporting the practice. Nolte, an attorney, was charged with receiving proceeds from three bank robberies committed by Homan, a client, while knowing the money was stolen, and was convicted on one count. (25) Homan originally agreed to testify for the government against Nolte but instead testified as a defense witness that Nolte was innocent. (26) The trial judge instructed the jury that an accomplice's testimony "should not be received by the jury as that of an ordinary witness, but ought to be received as suspicious and with the greatest care and caution." (27)

   The Fifth Circuit upheld the trial judge's action, ruling that when a defendant has an accomplice testify on his behalf, it is the better practice, although not required, for courts to give a cautionary instruction. (28) For this proposition it cited two Supreme Court decisions, each of which held that it is the "better practice" to give such an instruction when an accomplice testifies for the government. (29) "The policy behind the practice," the Fifth Circuit commented, "is obvious: to alert the jury to the possibility of perjured testimony." (30) To justify applying this principle to testimony by a defense witness, that court quoted a third United States Supreme Court decision, Washington v. Texas (31): "[W]hen one accomplice testifies for another, there is always the chance that each will try to 'swear the other out of the charge.'" (32)

   The Fifth Circuit quoted Washington accurately, but Washington does not support the proposition for which it was quoted. In that case, Washington and a codefendant, Fuller, were accused of the shotgun killing of the young man who was dating Washington's former girlfriend. (33) Washington testified that he had tried to dissuade Fuller, who owned the shotgun, from shooting anyone, but that Fuller, who was intoxicated at the time, fired the shot anyway. (34) Fuller, who had already been convicted and sentenced to fifty years, was prepared to testify to corroborate Washington's version of events, but the trial judge, applying two Texas statutes which prohibited persons charged as principals, accomplices, or accessories in the same crime from testifying as witnesses for each other, precluded Fuller's testimony. (35) The Supreme Court held first, that a criminal defendant's Sixth Amendment right to have compulsory process for obtaining witnesses in his favor is applicable to the States through the Fourteenth Amendment and second, that the Texas statutes violated this right. (36)

   In explaining its holding, the Court noted that provisions like the Texas statutes evolved from the early common law rule that no party in civil or criminal litigation could testify, because of his interest in the outcome. (37) Even after that rule was abolished, the Court related, some jurisdictions retained the prohibition against one alleged accomplice testifying for another:

    It was thought that if two persons charged with the same crime were allowed to testify on behalf of each other; "each would try to swear the other out of the charge." This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court's interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue. (38) 

   The Court then disparaged that thinking as ill-conceived from the start and absurd in its application, since a supposed accomplice who testifies for the state in the hopes of receiving lenient treatment is at least as likely to commit perjury as one testifying to the defendant's innocence. (39)

   Thus, the phrase from Washington quoted in Nolte does not support the proposition for which the Fifth Circuit cited it; the Supreme Court included that phrase in Washington as an example of earlier thinking which, in Washington, it explicitly rejected.

   The Fifth Circuit, each time citing Nolte, has approved a cautionary instruction in such circumstances in at least two additional decisions. (40)

   The Seventh Circuit, similarly citing Nolte, has twice done likewise, each case, coincidentally, involving counterfeit currency: United States v. Cool, (41) which the Supreme Court reversed on other (but related) grounds, the discussion of which will be deferred for a few paragraphs, and United States v. Bolin, (42) which upheld giving such an instruction where the defendant's husband, after pleading guilty to counterfeiting charges, testified that his wife was innocent. (43)

   In United States v. Tirouda, (44) the Ninth Circuit joined the Fifth and Seventh Circuits in upholding a "care and caution" instruction about a defense-witness-as-accomplice. (45) Tirouda, along with his wife and mother, were indicted for falsely claiming that Tirouda had been born in Mississippi and that he was therefore a United States citizen. (46) At his trial, his mother, who was not then being tried...