Proffers
It is standard practice for prosecutors to use co-defendants or other persons with pending charges to testify at trials, with the promise of leniency, reduction in their charges, or even outright dismissals in exchange for their favorable testimony. The threat of prosecution and the promise of freedom is a powerful motivator that can certainly color a witness' testimony or even motivate them to fabricate it from whole cloth.
Except there will usually be no agreement saying, "this is what you will get in exchange for your testimony." There will be a "proffer," which basically says that the witness will testify truthfully at the trial and that the prosecutor makes no promises to them other than to take their cooperation into consideration.
Earlier this morning, an attorney asked me what my opinion was, as to whether his/her client should sign this type of proffer or not, and my answer was it depends. The first question is whether the client is anticipating a guilty plea in their case - if you are considering signing a proffer you are most likely anticipating a guilty plea, but make this clear to the client.
Typically, our prosecutors will live up to expectations when it comes to rewarding snitches, even when it is not spelled out. But - the standard proffer in Horry County basically binds the prosecutor to nothing and legally is of no benefit to a defendant. My answer is, if you have a strong enough case don't sign this type of non-agreement - at the least make sure these agreements have language in them that benefits and protects your client, at best make sure that there is a real promise spelled out in the agreement (rarely will a prosecutor agree to this, if only because they know that they do not have to with most attorneys). If your client's case is not a slam dunk on the other hand, your client may or may not want to enter the agreement and rely on the prosecutor's good graces.
As a matter of public policy - prosecutors and defense attorneys should stop this practice of half-truths, innuendo, and "agreements" that agree to nothing on paper. The goal is to ultimately mislead a jury and lie by claiming that their witness has been promised nothing and expects nothing in exchange for their testimony, which is unconscionable.
