Should you cooperate with the prosecution in its case against others involved or potentially involved in the events that gave rise to the charges against you? If you are faced with this choice, consider the following advantages and risks of cooperating with the prosecution:

Advantages of Cooperation

There is one, very significant, advantage to cooperation: The best deals in criminal cases await those who cooperate or turn state's evidence against their confederates. If your involvement in a conspiracy is marginal, your cooperation may even convince the prosecutor not to charge you at all.

Risks of Cooperation

• Physical, mental, and emotional harm

Cooperation often carries with it a serious risk of bodily harm. You and your criminal defense attorney should make sure that the prosecutor, police, and other government agents take those risks seriously and are capable of protecting you.

Aside from the risk of physical harm, you may feel deep emotional stress and guilt over betraying former friends. Remember, however, that your friends put you in this mess by enlisting you as a criminal conspirator and, had they the chance, they probably would cooperate against you without hesitation.

• A plea to more serious charges

Most prosecutors take a “carrot and stick” approach to cooperators. The carrot is a substantial sentence reduction. The stick is a surrender of rights and a plea to a serious charge, such that if the cooperator betrays the prosecutor, the prosecutor can easily impose a crushing sentence as punishment. Thus, you may find yourself forced to plead to more serious charges and stipulate to stiffer sentencing guidelines if you cooperate than you would on a straight plea.

• Prosecutor's discretion to assess the value of your cooperation

Most cooperation agreements give the prosecutor discretion to assess your cooperation's truth and value and decide whether to ask the judge for a sentence reduction. However, courts have the authority to review whether this discretion is exercised in good faith. Examples of bad faith include:

• Refusing a reduction based on the defendant's religion, ethnicity, or political beliefs, or refusing to ask for a reduction based on conditions or conduct of which the government already was aware at the time of the agreement.
• Basing a refusal on a belief that the baseline sentence (before any reduction) is sufficiently lenient.
• Refusing because the defendant provides truthful information that the government does not want to hear.

If you had no cooperation agreement, you have no remedy for the prosecutor's refusal to seek a reduced sentence unless the prosecutor acts from an unconstitutional motive, such as race or religion.

Choosing whether or not to cooperate with the prosecutor is a weighty decision. If you would like the counsel of an experienced criminal defense attorney, please call us.