While on my research leave this semester (gloat, gloat), I have run into some really interesting papers. One is Conspiracy Theory by Neal Kumar Katyal, 112 Yale Law Journal 1307 (2003). In this provocative paper that thoroughly dissects the whys, hows, and what thens of the charge of conspiracy, Professor Katyal gives a history of practice of conspirators testifying against each other. This history includes a practice known as approvement:
Medieval law as early as 1130 recognized the practice of approvement, whereby an indicted person could plead guilty but offer to cooperate with the prosecution. The accuser had to implicate accomplices before the jury deliberation began, and the accuser was not simply to reveal "the whole truth" of the particular crime, but also all felonies to which the person had knowledge. If the accomplices were convicted, he would be pardoned, but if his accomplices were not, then the accuser was sentenced to death.
Wow. Two thoughts come to mind. First, this "downside" may encourage truth-telling, and not just testifying as an escape from punishment or out of spite or revenge. However, the results may not always correspond to the truthfulness of the testimony. The jury may not believe truthful testimony or may believe the testimony but acquit anyway. If I testify that my partner in thievery had talked about going back and killing a potential witness, the jury might believe my testimony but believe that the witness' violent, abusive spouse was the culprit. Second, what does this say about all the Enron defendants who pled guilty to charges and testified in the broadband trial or the Nigerian barge trial? Some of those questioned received letters of no prosecution, but some received reduced jail time. I did feel sorry for them because they are going to jail when their so-called co-conspirators are now acquitted, but at least they won't face the death penalty!
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