Criminal antitrust trials occur relatively infrequently these days, so an occasional review of some of the issues that arise at trial can be useful as a refresher. Many government witnesses at a criminal antitrust trial are testifying pursuant to some type of agreement with the government. Such agreements include amnesty, immunity, non-prosecution/cooperation agreements and plea agreements. The essence of the agreement is that the witness will receive some type of benefit in the form of a reduced punishment (or immunity). In return, the witness agrees to cooperate with the government and testify at trial. If the witness does not give truthful testimony, he/she is theoretically subject to prosecution for perjury, and may also lose the benefits conferred by the agreement

A recent Second Circuit decision, U.S. v. Certified Environmental Services, Inc., No. 11-4872 (2d Cir. May 28, 2014), provides a chance to review the proper use of plea agreements at trial.   The court reversed convictions on several counts related to a scheme by defendants to violate various state and federal environmental regulations. The convictions were reversed based, in part, on the government having improperly bolstered the witness’s credibility by referring to the cooperation agreement requirement that the witness tell the truth.

The Court summarized a few well-established principles regarding the use of “truth-telling” provisions in plea agreements.

1)        The first principle is that the existence of a cooperation agreement is a double-edged sword. It provides ammunition to the defense to attack the credibility of the witness and bring out criminal wrongdoing. On the other hand, the truth-telling provision can be used by the government to rehabilitate the witness. The court stated that overall, “the entire cooperation agreement bolsters more than impeaches.”

2)        A second principle is that the government may not introduce the bolstering aspects of a cooperation agreement unless and until the witness’s credibility has been attacked in such a way as to “open the door” to the admission of the agreement. The attack on credibility often comes in the defense opening statement, but if it does not, the government may not bolster witnesses on direct.

3)        Third, while the government may not bring out the bolstering aspects of the plea agreement until defendant “opens the door,” this restriction does not apply to the agreement’s impeaching aspects—such as the benefits received by the witness. This rule allows the government to anticipate cross-examination of a witness and disclose the existence of and benefits of an agreement to remove the possibility that defense can imply government was hiding something.

4)        Finally, while the government can rehabilitate the witness using the cooperation agreement after his credibility has been attacked, the government cannot personally vouch for the witness’s truthfulness.

In this case, the prosecutor in his opening statement repeatedly referred to the “truth-telling” provision of the several witnesses’ agreements. One example: “The witnesses were deplorable. They pled guilty and got a deal. Their obligation is to tell the truth.” Another example: “We will introduce their plea agreements, and you will see through their plea agreements what their obligations are, what benefits they get, and what happens if they don’t tell the truth.” Also in the opening the prosecutor stated, “The immunity agreements are very simple. We wanted to ensure that people taking the stand provided the truth. “

The improper use of the agreements extended to direct examinations. The defense did not attack the credibility of the witnesses in their openings, but prosecutors went into the truth-telling provisions on direct with nine witnesses. The defense objected vigorously the first two times this happened but were overruled. The examinations included questions in which the witnesses were asked whether they had an “understanding of what happens to your immunity if you provide false information today.”

The Second Circuit reversed the convictions based on the cumulative effect of various errors under the standard: “We will reverse if the misconduct caused ‘substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process.’”

The government, including Antitrust Division trial attorneys, will usually be anxious to question witnesses about any cooperation agreement to “take the sting” out of cross-examination on the “deal” the witness received. Defense counsel, however, need to lean forward in their chairs and get ready to object if the prosecutors jump the gun and emphasize the “truth telling “ provision of a witness’s agreement before impeachment. Likewise, in the heat of a trial, prosecutors may cross the line and vouch for the credibility of their witnesses. Where this line is exactly can be difficult to tell, but defense counsel must be ready to protect the record with timely objections.