Criminal Defense Lawyers

Codefendant Testifying Against You in Federal Trial

Here’s the uncomfortable truth about cooperating codefendants that defense attorneys know but rarely say out loud. Your codefendant doesn’t get credit for providing evidence of your innocence. They only get credit for helping the government convict you. The entire incentive structure pushes them toward exaggeration, embellishment, and outright fabrication. Their sentence reduction depends on your conviction. They need you to go to prison for them to go home early. That’s the witness the jury is about to hear.

Welcome to Spodek Law Group. Our goal is to explain exactly how cooperating codefendant testimony works in federal trials – what motivates these witnesses, what protections you have, and why the system that’s supposed to prevent false testimony keeps producing wrongful convictions. Understanding how cooperators operate helps you prepare a defense against testimony that might be colored by desperation and self-interest.

The statistics are stark. A Northwestern University study found that almost half of wrongful convictions in death penalty cases were based on false testimony from informants. The Innocence Project found that 25% of DNA exonerations involved the knowing use of false incentivized witness testimony. These aren’t edge cases. Cooperating witness testimony is the leading cause of wrongful convictions in capital cases. And yet prosecutors keep using it because it works – not because it’s reliable, but because juries believe people who have “nothing to gain” from lying. Except cooperating witnesses have everything to gain.

How Cooperating Codefendants Work Against You

Heres the system revelation that explains everything. A cooperating witness gets credit from prosecutors only if their testimony helps the government. If they provide evidence that suggests your innocent, they get nothing. If they provide evidence that helps convict you, they get a 5K1.1 motion recommending a reduced sentence. Thats not a bug in the system – thats the design.

Cooperating witnesses get credit only for testimony that helps convict – never for evidence of innocence.

Think about what this means. Your codefendant is facing 10 years. If they cooperate effectively, they might get 5 years. “Effective cooperation” means helping the government convict other defendants. If their testimony is weak or unhelpful, they get nothing. If their testimony is powerful and convincing, they go home years earlier. Every word they say at trial affects wheather they see their family again.

And heres the paradox that makes it worse. The more desperate your codefendant is for the deal, the more incentive they have to exaggerate. A codefendant facing 20 years has twice the motivation to embellish as one facing 10 years. The people with the most to gain from lying are exactly the witnesses prosecutors recruit.

Todd Spodek has cross-examined cooperating witnesses who seemed credible right up until you understood their incentive structure. The jury sees someone confessing their own crimes and naming others. What they dont see is the calculation: “If I make this person sound more guilty, I might get home 3 years earlier.”

The Incentive Structure That Creates Liars

Heres the uncomfortable truth the system refuses to acknowledge. Over 20% of DNA exonerations involved snitch testimony. People went to prison – some for decades – based on lies told by witnesses who had every reason to lie.

The numbers get worse. By 2016, the National Registry of Exonerations found that 81 of 116 death penalty exonerations involved perjury or false testimony by incentivized witnesses. Thats a 70% rate. Seventy percent of people wrongly sentenced to death were convicted partly because a cooperating witness lied.

Heres the hidden connection that explains why this keeps happening. The cooperating witness knows what the prosecutor thinks is “the truth.” Theyve been in proffer sessions. Theyve heard the governments theory. They know what evidence prosecutors have. So they tailor their testimony to match – not becuase theyre remembering accurately, but becuase they know what the prosecutor wants to hear.

And heres the consequence cascade. Codefendant needs deal → has some information about you → embellishes to make testimony more valuable → prosecutors are pleased → cooperator gets sentence reduction → you get convicted based on exaggerations → you go to prison while they go home. Your conviction IS their reward.

Your Confrontation Rights – And Their Limits

The Sixth Amendment gives you the right to confront witnesses against you. The 1968 Supreme Court case Bruton v. United States established an important protection: if your codefendant confessed and that confession implicates you, but your codefendant wont testify at trial, that confession cant be used against you. The logic is simple. You cant cross-examine a confession. If the confessor wont take the stand, you have no way to challenge what they said.

Heres the irony defense attorneys confront. Bruton only protects you if the codefendant DOESNT testify. If they take the stand and submit to cross-examination, you lose that protection entirely. The confession comes in. The testimony comes in. Everything they said gets presented to the jury.

Bruton protects you from a codefendant’s confession only if they DON’T testify – if they do, you lose that protection.

Later cases modified Bruton in ways that help and hurt defendants. Richardson v. Marsh (1987) said a properly redacted confession – one that dosent mention you at all – can come in even without testimony. Gray v. Maryland (1998) said replacing your name with “deleted” or a blank space still violates Bruton becuase the jury can obviously figure out who “deleted” refers to.

The most recent case, Samia v. United States (2023), allowed confessions using neutral descriptors like “the other person” rather then directly naming the defendant. The law keeps evolving, and each evolution tends to make it easier for prosecutors to get cooperator testimony admitted.

The Cross-Examination Playbook

Defense attorneys who cross-examine cooperating witnesses follow a predictable playbook. Attack the deal. Highlight their crimes. Expose bias and motive. These are the standard moves.

Heres the hidden connection that undermines this strategy. Prosecutors know exactly what your going to do. Theyve prepared the cooperator for these attacks. Before trial, they sit the witness down and say: “The defense is going to attack your deal. Theyre going to remind the jury you committed crimes. Theyre going to suggest your lying to get a reduced sentence. Heres how you respond…”

By the time you cross-examine, the witness has rehearsed answers to every question you plan to ask.

And heres the inversion that frustrates defense attorneys. Attacking the cooperation deal on cross-examination often backfires. The jury already knows about the deal. The prosecutor disclosed it on direct examination. When you spend 20 minutes attacking the deal, your just confirming what everyone already knew. You look like your desperate, not like your exposing anything.

Todd has developed cross-examination approaches that go beyond the predictable playbook. Instead of attacking the deal generally, you attack specific inconsistencies. Instead of asking “isnt it true you made a deal,” you find the places were the witness story changed between proffer sessions. The goal isnt to prove they made a deal – everyone knows that. The goal is to prove they lied about specific facts.

Why Corroboration Makes Everything Worse

Prosecutors know that cooperator testimony alone is weak. Juries are instructed to view it with caution. Defense attorneys attack credibility. Standing alone, a cooperating witness often isnt enough.

Heres what makes cooperator testimony powerful: corroboration. When prosecutors pair cooperator testimony with documents, physical evidence, other witnesses, or electronic records, the combination becomes devastating. The cooperator provides the narrative. The evidence makes the narrative seem true.

Think about what this means for your defense. If the only evidence against you is cooperator testimony, you have a fighting chance. But if prosecutors can point to documents that seem to support what the cooperator said, or texts that mention what the cooperator claims happened, or financial records that align with the cooperators timeline – now you have a much bigger problem.

And heres the hidden connection that makes corroboration unfair. The cooperator has seen the evidence. Theyve been through discovery. They know what documents exist. So they craft their testimony to align with the evidence – not becuase theyre remembering accurately, but becuase they know what other proof is available. The corroboration that makes their testimony seem credible might actually be reverse-engineered from evidence they reviewed before testifying.

When Cooperators Lie – The Wrongful Conviction Problem

A 2001 Canadian judicial inquiry concluded that “jailhouse informants comprise the most deceitful and deceptive group of witnesses known to frequent the courts.” This wasnt defense attorney rhetoric. This was a judge who studied the problem systematically.

The Curtis Flowers case demonstrates how bad it can get. Flowers was tried six times for murder – the prosecution kept using cooperating witnesses. Eventually, the snitches admitted they had lied, having been fed details of the crime by the prosecutor. After that admission, the state dropped charges. Flowers is now suing the prosecutor for misconduct.

Joseph Green Brown spent years on death row based on cooperating witness testimony. On cross-examination, the witness denied being promised anything for his testimony. After Browns conviction, it came to light this wasnt true. The appeals court ordered a new trial. Then the witness recanted entirely, admitting he had lied becuase he was angry.

Heres the uncomfortable truth. Prosecutors, police, and cooperating witnesses are rarely held accountable when false testimony leads to wrongful conviction. The system that creates incentives for lying dosent punish lying when its discovered. Cooperators who commit perjury almost never face consequences. The structure remains unchanged even as wrongful conviction evidence piles up.

The Jury Instruction Fiction

In federal court, juries receive a cautionary instruction about cooperating witnesses. The instruction acknowledges that the witness received benefits in exchange for testimony. It tells jurors to “look with particular care” at cooperator testimony and “scrutinize it very carefully.”

Heres the irony nobody addresses. If the instruction actually worked, we wouldnt have the wrongful conviction rates we do. The instruction is supposed to cure the problem of incentivized testimony. But 25% of DNA exonerations involved false cooperator testimony. The “cure” isnt working.

The jury instruction acknowledging cooperators may lie is supposed to “cure” the problem – wrongful conviction rates prove it doesn’t.

The Supreme Court itself recognized this problem in Bruton. They held that limiting instructions telling juries to “disregard” codefendant confessions are insufficient protection. Juries cant un-hear damaging testimony. The same logic applies to cooperator testimony generally – telling jurors to be “particularly careful” dosent actually make them immune to false testimony that sounds convincing.

At Spodek Law Group, we dont rely on jury instructions to protect clients from cooperator testimony. We assume the instruction wont cure anything. We prepare defenses that work even if the jury dosent scrutinize the cooperator as carefully as the instruction suggests.

What Prosecutors Promise – And What They Actually Deliver

Heres the system revelation that many cooperators dont understand until its to late. The prosecutor can promise anything to get testimony. Reduced sentence. Complete immunity. Cash payments. Relocation. Protection. But what they actually deliver depends on factors the cooperator cant control.

The 5K1.1 motion – the formal recommendation for sentence reduction – is entirely within prosecutorial discretion. Even if a cooperator does everything theyre asked, theres no legal requirement that the prosecutor file the motion. Cooperators have given extensive testimony, provided documents, testified at multiple trials, and still received nothing becuase the prosecutor decided their assistance wasnt “substantial” enough.

And heres the hidden connection that creates additional pressure. Some cooperation agreements make the benefit contingent on the prosecutions success. If the cooperators testimony helps convict you, they get credit. If you go to trial and get acquitted, the cooperator might get nothing. This means the cooperator needs you convicted not just for their testimony to be valuable, but for them to receive any reward at all.

Think about what this does to testimony. The cooperator isnt just motivated to help the prosecution. Theyre motivated to help the prosecution WIN. If that means exaggerating, embellishing, or outright lying about your role, theyve got every reason to do it. Their sentence reduction depends on your conviction.

Todd has seen cooperators become visibly desperate on cross-examination when they realized their deal might fall apart. The more you expose inconsistencies, the more they double down. Theyre not defending the truth – theyre defending their ticket home.

The Proffer Session Problem

Before cooperators testify at trial, they go through proffer sessions – meetings were they tell prosecutors everything they know. These sessions create their own problems.

Heres the paradox. The proffer session is supposed to ensure the cooperator tells the truth. But the structure of the session actually encourages shaping testimony to match what prosecutors want to hear. The cooperator learns what the government thinks happened. They learn what evidence prosecutors have. They learn which defendants prosecutors are most interested in. Armed with this knowledge, they can tailor their memory to fit the governments theory.

And heres what happens between proffer and trial. The cooperator reviews discovery. They see documents. They read other witness statements. By the time they testify, theyve had months to align their story with available evidence. What sounds like corroboration might actually be contamination – the witness absorbed information from other sources and incorporated it into their “memory.”

The prosecution will argue this is just “refreshing recollection.” But theres a difference between reminding someone of what they witnessed and showing them evidence they can use to construct testimony that fits the governments case. Defense attorneys rarely get access to proffer session recordings. The contamination happens in the dark.

When Your Only Defense Is Attacking Credibility

Sometimes the evidence against you is essentially the cooperating codefendant. No documents. No recordings. No independent witnesses. Just your former codefendant saying you did things, and you saying you didnt.

Heres the uncomfortable truth about credibility contests. Juries tend to believe the more specific testimony. A cooperator who provides detailed descriptions – dates, times, locations, specific conversations – sounds more credible then a defendant who says “I didnt do that.” The detail makes it seem real, even if the detail is fabricated.

This is were thorough investigation becomes critical. If the cooperator claims something happened on a specific date, can you prove you were somewhere else? If they describe a conversation in a particular location, can you show that location dosent match their description? If they claim you said specific words, is there any evidence that contradicts those words?

The goal isnt to prove the cooperator is lying about everything. The goal is to prove theyre wrong about enough things that the jury questions everything else. One provably false detail can contaminate their entire testimony. But you have to find that detail, and that requires investigation before trial.

Preparing Your Defense Against Cooperator Testimony

Given these realities, how do you defend against a codefendant testifying for the government?

First, investigate the cooperator thoroughly. What deals have they made before? Have they testified in other cases? What did they say in proffer sessions? How has their story changed over time? Inconsistencies between proffer statements and trial testimony can be devastating on cross-examination.

Second, look for evidence the cooperator couldnt have known. If theyre testifying about conversations or events they werent present for, their testimony is speculation dressed up as fact. Prosecutors sometimes let cooperators testify about things they heard secondhand or inferred from documents.

Third, track when the cooperator learned about evidence. If their story changed after they reviewed discovery, thats not “refreshing recollection” – thats tailoring testimony to match available proof. Document the timeline of what they knew and when.

Fourth, find witnesses who contradict the cooperator. Other people present at the same events might remember things differently. The cooperators version isnt the only version.

Fifth, prepare your client for what the cooperator will say. Cooperators often embellish – they make minor participants sound like major players, and major players sound like kingpins. Understanding what exaggerations to expect helps you respond effectively.

The Reality Of Facing Your Former Partner

Heres something nobody prepares you for. Watching someone you worked with, trusted, maybe even considered a friend, take the stand and say things about you that could put you in prison for years. The emotional weight of cooperator testimony goes beyond legal strategy.

The cooperator knows personal details about you. They know your vulnerabilities. They can make you look bad in ways that go beyond the specific charges. And they have every incentive to paint you as the bad guy – becuase the worse you look, the better they look by comparison.

This is were preparation matters beyond legal analysis. You need to be ready emotionally for what the cooperator will say. You need to understand that their testimony is motivated by self-preservation, not truth. You need to maintain composure while someone you know describes you as something your not. Juries watch defendants during cooperator testimony. Your reaction matters.

Call Spodek Law Group at 212-300-5196. The consultation is free. Codefendant testimony in federal trials presents unique challenges. The incentive structure pushes cooperators toward exaggeration. The wrongful conviction statistics prove the system dosent adequately protect innocent defendants. Understanding how cooperating witnesses operate, what motivates their testimony, and how to defend against it helps you navigate one of the most difficult dynamics in federal court. Your codefendant wants to go home early. Your job is to make sure they dont do it at your expense.