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Practice Points: Immunized Witnesses: Lessons Learned From The Trial Of Mayor Marion S. Barry
By Jack King,Elizabeth Kelley
Immunized Witnesses: Lessons From The Trial Of Mayor Marion S. Barry1— Part I: Jury Instructions and Cross-Examination
“[A] witness who believes that he or she may procure his or her own freedom by incriminating another has a motive to falsify. You should receive such testimony with caution and scrutinize it with great care.” — U.S. District Judge Thomas Penfield Jackson, final instructions to jury, United States v. Marion S. Barry, D.D.C., No. 90-68, transcript at 5728. 2
The upsurge in public corruption cases, on Capitol Hill and around the country, reminds us that the rat is always with us. Federal and state prosecutors have relied on flipping co-defendants and unindicted co-conspirators for so long that it bears repeating that criminal defense lawyers, and young lawyers in particular, should recall and realize that you absolutely can win your case by destroying the prosecution’s witnesses. The keys to success are an effective, well-informed cross-examination, a powerful closing ar
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