2.08 Caution as to Cooperating Witness/Accomplice/Paid Informant

You have heard the testimony of [name of witness]. [He/She]:

(1) provided evidence under agreements with the government;

[and/or]

(2) participated in the crime charged against [defendant];

[and/or]

(3) received money [or . . .] from the government in exchange for providing information.

Some people in this position are entirely truthful when testifying. Still, you should consider the testimony of these individuals with particular caution. They may have had reason to make up stories or exaggerate what others did because they wanted to help themselves.

Comment(s)

(1) “Though it is prudent for the court to give a cautionary instruction [for accomplice testimony], even when one is not requested, failure to do so is not automatic error especially where the testimony is not incredible or otherwise insubstantial on its face.” United States v. Wright, 573 F.2d 681, 685 (1st Cir. 1978); see also United States v. House, 471 F.2d 886, 888 (1st Cir. 1973) (same for paid-informant testimony). The language varies somewhat. United States v. Paniagua-Ramos, 251 F.3d 242, 245 (1st Cir. 2001) (“no magic words that must be spoken”); United States v. Hernandez, 109 F.3d 13, 17 (1st Cir. 1997) (approving “with greater caution” or “with caution”); United States v. Brown, 938 F.2d 1482, 1486 (1st Cir. 1991) (referring to the standard accomplice instruction as “with caution and great care”); United States v. Skandier, 758 F.2d 43, 46 (1st Cir. 1985) (“scrutinized with particular care”); United States v. Hickey, 596 F.2d 1082, 1091 n.6 (1st Cir. 1979) (approving “greater care” instruction). The standard is the same for witnesses granted immunity, United States v. Newton, 891 F.2d 944, 950 (1st Cir. 1989) (jury should be instructed that such “testimony must be received with caution and weighed with care”), and for paid informants, United States v. Cresta, 825 F.2d 538, 546 (1st Cir. 1987) (“the jury must be specifically instructed to weigh the witness’ testimony with care”).