'Soft Words of Hope': Giglio, Accomplice Witnesses, and the Problem of Implied Inducements
50 Pages Posted: 2 Apr 2004 Last revised: 23 Jul 2010
Many scholars have criticized the government's practice of rewarding accomplices with leniency in exchange for their cooperation in criminal cases, because such practice provides the accomplice with a tremendous inducement to fabricate in order to curry favor with the government. To date, however, no commentators have approached the complex problem of accomplice fabrication from the perspective of criminal discovery. In the enclosed article, the author takes a fresh look at the subject of accomplice testimony, and argues that what are needed are not further restrictions on the circumstances in which an accomplice may testify, but rather a more vigorous enforcement of the government's constitutional disclosure obligations under Giglio v. United States. The author argues that Giglio doctrine as presently construed by many state and federal courts does not provide the defense in criminal cases with sufficient information needed to conduct a meaningful cross-examination of an accomplice witness. The author recommends not only a broader construction of Giglio, but also an amendment to the special rule of professional conduct applicable to prosecutors precluding them from making oral inducements to a cooperating witness.
Keywords: criminal procedure, accomplice witnesses, professional responsibility
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