Lessons I learned as a cooperating witness

From the Frederic Bourke prosecution to the PetroTiger cases and the FIFA indictments, defendants who enter early guilty pleas and testify for the government have a role in most big bribery cases.

I was a cooperating witness in the Africa sting prosecution. I spent nearly a month on the witness stand, including almost three weeks under cross-examination by six defense attorneys.

I don’t ever plan to repeat that experience. But I did learn some lessons that might help future cooperating witnesses as well as their lawyers and DOJ handlers.

The first three rules for a cooperating witness are: Be truthful, be truthful, be truthful.

Don’t worry about being credible or whether the jury will like you. They probably won’t. Those things are outside your control. Whether you are truthful is within your control. When it’s time for your own sentencing, the judge will weigh the truthfulness of your testimony, not whether the jury believed or liked you.

Answer the question you’re being asked.

During several months in trial preparation, I learned not to think too hard about the question I was just asked, and not to anticipate the next question, and most importantly, not to worry about whether my response would hurt or help the government’s case.

I learned to focus on the question at hand and to answer it. I learned not to put the question through layers of analysis and anticipation. The truthfulness of an answer doesn’t depend on what the next question might be or the theory behind it.

Don’t pull for the home team.

Whether the testimony will help or hurt the government or the defendant isn’t the cooperating witness’s  concern. The cooperating witness is a small piece of a bigger puzzle. How the bigger puzzle all fits together is in the hands of the prosecutors, the defense lawyers, the jury, and the judge. 

As the government shared at my sentencing, “the outcome of the investigation or the case of the trial doesn’t really affect the cooperation,” adding “that’s the point. If it goes well, great. If it doesn’t, it’s not on you.”

If a cooperating witness tries to help the government “win,” the accuracy of the testimony will likely suffer. The witness will take an extra beating on cross examination with the risk of perjury if taken too far. Worse, the jury and judge will see through the partisanship and discount the CW’s credibility and reliability.

A cooperating witness should remember that the same judicial process which afforded him or her the opportunity to cooperate and perhaps have a downward departure in sentence, also affords the defendant the right to a trial in which truthful testimony is dispensed under direct, cross, and re-direct. Everyone’s rights need to be respected.

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The Africa sting prosecution ultimately collapsed. But at my own sentencing for earlier and unrelated FCPA-related offenses, Judge Richard Leon said, “The Court was very mindful of your candor there [he was talking about my admission of my own illegal conduct]. You were cross examined vigorously by some of the finest lawyers in the country, and you put up with that under very stressful circumstances. There is just no question about that.”

The sentence Judge Leon gave me — which resulted in 14 months in federal prison — had nothing to do with the outcome of the Africa sting prosecution. It wasn’t about whether the jury believed what I said, or liked me. My testimony as a cooperating witness was analyzed through a single, simple filter — accuracy.

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Richard Bistrong is a contributing editor of the FCPA Blog and CEO of Front-Line Anti-Bribery LLC. He consults, writes and speaks about compliance issues. He can be contacted here.