Cross-Examination: Destroying the Government's Star Witness

If the case goes to trial, cross-examination of the informant is often the most important moment of the entire proceeding. This is where cases are won or lost. This is where jurors decide whether to believe the person trying to send you to prison.

The cross-examination strategy for informants follows specific patterns that experienced federal defense lawyers understand:

Establish the deal. Make the jury understand exactly what this witness is getting in exchange for testimony. How many years are they facing? What sentence reduction did the government promise? Is their freedom contingent on providing testimony the government finds satisfactory? When jurors understand that a witness is literally testifying to stay out of prison, it changes how they evaluate everything that witness says.

Expose the incentive structure. The informant's deal probably depends on providing "substantial assistance." What exactly makes testimony substantial? Who decides if the assistance is good enough? The prosecutor. The person sitting at the other table. The informant knows this - knows their sentence depends on making the prosecutor happy.

Highlight prior inconsistencies. What did the informant say in their first debriefing? What did they say six months later? What are they saying now on the stand? Cooperating witnesses often give multiple statements over months or years of cooperation. The details shift. The stories change. Finding and exposing those inconsistencies is devastating.

Challenge specific claims. If the informant claims a particular conversation occurred, what documentation exists? Where's the recording? Are there other witnesses? Does the timeline even make sense? Informants often provide information they cant actually verify - and juries notice when claims cant be substantiated.

Demonstrate the pattern. Is this the first time this informant has cooperated? Have they testified in other cases? What happened in those cases? Serial informants - people who make a career of providing testimony - face significant credibility problems when their pattern is exposed.

The Memory Problem Nobody Addresses

Heres what makes informant cases particularly troubling. Even if the informant genuinely believes theyre telling the truth, their testimony may still be wrong.

Memory doesnt work like a recording. Every time someone recalls an event, they're reconstructing it. Details get added. Context shifts. What someone believes they remember isnt necessarily what actually happened.

Now add the pressure of federal cooperation. The informant has been through dozens of interviews with prosecutors. Theyve been asked the same questions different ways. Theyve been told when their answers are helpful and when they need to "think harder" about what they remember. This process shapes memory. It influences what the informant believes happened.

Your informant may genuinely, sincerely believe they remember a conversation where you admitted criminal intent. They may be absolutley certain it happened. And they may be completley wrong. Not lying - wrong. Because the process of becoming a cooperator changed what they remember.

This is why documentary evidence matters so much. Emails dont change. Text messages dont evolve with repeated questioning. Financial records say what they say. When informant testimony contradicts documentary evidence, jurors have a choice: believe the documents or believe the cooperator. Make sure they have that choice.

When Informant Testimony Can Be Excluded Entirely

In some cases, informant testimony can be suppressed before trial even begins. This is rare but possible.

If the government violated your constitutional rights in obtaining the informant's cooperation - if they coerced testimony, if they made promises they werent authorized to make, if they withheld Brady material that would have affected your decisions - there may be grounds for suppression.

If the informant was involved in entrapment, their testimony about your predisposition may be subject to challenge. Entrapment occurs when the government induces someone to commit a crime they weren't already predisposed to commit. Proving entrapment is difficult - federal courts use a subjective test focused on your predisposition rather then government conduct - but if the informant crossed lines, it matters.

If the informant's testimony is so unreliable that no reasonable jury could believe it, the court has authority to exclude it. This is an extremely high bar. But it exists.

Most informant challenges happen at trial rather then pretrial. Thats the reality of federal practice. But understanding what motions are available - and when to file them - is critical to building a complete defense strategy.

Legal Pulse: Key Statistics

15,000+Pretrial Diversion

defendants enrolled in NJ pretrial intervention programs annually

Source: NJ PTI Statistics

92%Expungement Success

approval rate for properly filed expungement petitions in NJ

Source: NJ Courts 2024

Statistics updated regularly based on latest available data

Alexander Smirnov: When Trusted Informants Fabricate Everything

In 2024, Alexander Smirnov was sentenced to six years in federal prison. His crime? Fabricating evidence while working as an FBI informant.

Smirnov had been a trusted FBI informant for over a decade. The FBI worked with him on multiple cases. He had established credibility with the government. And then he made up an entire bribery scheme involving Joe Biden and Burisma - the Ukrainian energy company - out of whole cloth.

Think about that. A ten-year relationship. Multiple successful cooperations. An informant the government trusted completley. And he fabricated a major political conspiracy because he had personal biases.

If a long-term trusted FBI informant can invent crimes that never happened, what does that tell you about the informant in your case? Someone with less oversight, less scrutiny, more incentive to produce results?

The Smirnov case demonstrates what defense attorneys have known for decades: informants lie. Even good informants. Even reliable informants. Even informants the government trusts. The entire system is built on a foundation of believing people who have every reason to fabricate.

Expert Witnesses on Informant Unreliability

In some cases, courts allow defense attorneys to call expert witnesses to testify about the unreliability of informant testimony. These experts present research on:

• How incentives affect memory and testimony
• Statistics on wrongful convictions involving informants
• The psychology of false confessions and fabricated claims
• Studies on how cooperators adjust their testimony to please prosecutors

Not all courts allow this testimony. Some judges consider it invading the province of the jury. But when expert testimony is permitted, it provides crucial context for jurors who may not understand how problematic informant testimony can be.

At Spodek Law Group, we evaluate whether expert testimony would help in each case we handle. Sometimes the informant's credibility problems are obvious enough that experts arent needed. Sometimes expert testimony is the key to helping jurors understand why they should be skeptical.

Jury Instructions: Making Sure They Know

Most federal courts give special cautionary instructions when informant testimony is involved. These instructions tell jurors to view cooperator testimony with special care because of the incentives involved.

But standard instructions are often weak. They acknowledge that informants may have motives to lie without really drilling down on what that means. Defense attorneys should request enhanced instructions that specifically address:

• The precise benefits the informant is receiving
• The connection between providing damaging testimony and receiving those benefits
• The unreliability of incentivized testimony as documented by research
• The specific ways memory can be influenced by the cooperation process

Getting the right jury instructions is part of building a complete defense. Jurors listen to what judges tell them. Making sure the judge tells them to be skeptical of informants can be the difference between conviction and acquittal.

The Path Forward

If you're facing federal charges based on informant testimony, you need to understand something essential: these cases can be won. Not easily. Not without sophisticated legal work. But they can be won.

The government's 93% conviction rate includes many cases that never should have been brought - cases based on fabricated informant testimony, cases where innocent people pled guilty because they couldnt afford to fight. Every case is different. The strength of informant testimony varies. The documentary evidence matters. The specific deals and incentives are unique to each cooperator.

At Spodek Law Group, we've defended clients against informant testimony for years. Weve challenged cooperators on cross-examination. Weve filed discovery motions that changed the landscape of cases. Weve found Brady violations that prosecutors tried to hide. And weve seen clients walk free when the government's star witness turned out to be less reliable then prosecutors claimed.

The first step is understanding what you're actually facing. Who is the informant? What deal did they get? What exactly are they claiming? What evidence supports - or contradicts - their testimony?

Call Spodek Law Group at 212-300-5196.

Federal prosecutors have been building their case for months. They have an informant who's telling them exactly what they want to hear. They have every advantage the system provides.

But informant testimony can be challenged. Cooperator credibility can be destroyed. Cases that looked unwinnable have been won.

The question is whether you're going to fight - really fight - or whether you're going to accept the government's version of events as truth. Because what the informant is saying about you isnt necessarily what happened. And proving that requires experienced federal defense counsel who know how to take apart a cooperating witness piece by piece.

Your freedom may depend on it.