One telling feature of this conference as a whole has been the extent to which speakers have focused on the cooperation dynamic outside the courtroom. Prosecutors should take more pains to avoid suborning or even unconsciously encouraging perjury by the cooperator who is looking for a lower sentence. Courts and disciplinary authorities should ensure that such pains are taken.
What's interesting is how little attention has been given to changing what happens in front of the jury. Since our assignment has been to think "outside of the box" (which usually means proposing something interesting but really wrong or dangerous), I'd like to broach the question of whether we should do more to align the zealous prosecutor's interest in winning with an institutional interest in justice, by expanding the range of proof that a jury ordinarily considers when it comes to cooperation.
Trials of course are a rarity in our system. But interactions with prospective witnesses do take place in the shadow of evidentiary rules. In our effort to structure the interaction between prosecutors and cooperators, it is worth considering the incentives, or more precisely the lack of incentives, that prevailing evidentiary rules give to prosecutors.
Evidence | Law
Daniel C. Richman,
Expanding the Evidentiary Frame for Cooperating Witnesses,
Cardozo L. Rev.
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