Many defendants assume that they can’t win anymore, or that the stakes are too high to take the chance.  So, they turn to what they believe to be the easy option:  cooperation.  The assumption is that cooperation is a “get out of jail free” card.  This may be one of the worst assumptions that a defendant can make, and he or she may be haunted by this choice for many, many years.

Aside from the obvious issues surrounding cooperation, such as becoming a “rat” against one’s friends and family, risking one’s life and impairing what little integrity you may have, there is a very pragmatic problem.  Cooperation is not a free ride.  The chance that you will be released to wander the streets as a happy, carefree person is slim to none.  That’s just not the outcome.  While you may be given a substantial concession in time, it does not mean that you will have worked off any punishment whatsoever.

Oddly, one aspect of cooperation that doesn’t dawn on many people until after it’s too late is that the first thing asked of you is to be debriefed about your own prior criminal conduct.  What this means is that you are required to disclose everything you’ve ever done wrong that the government doesn’t know about yet, or can’t prove.  But now, with your admission, they DO know about it and they CAN prove it.  Very often, the deal with the government will include that you be charged with these additional offenses as well as the offense for which you were arrested.  The impact is that while you were facing a charge for one crime initially, you are now facing charges for 10 crimes, with a commensurately greater penalty.  So, even with a substantial concession resulting from the cooperation, you end up with as much, if not more, time in prison than you would have had in the first place.

Another ploy is that many defendants think that they can control the government when giving cooperation.  They can limit what they say to avoid implicating their friends or avoid admitting to prior criminal conduct.  This is one of the most dangerous things that can happen.  While there are ocassionally defendants who pull this off, most of the time the government has far more information about the defendant than he realizes, but will hold this information close to the vest.  Why?  Because the first thing you are told is that you must tell the truth or your cooperation, even though given, will not result in any benefit.  By keeping the additional information to themselves, the government tests defendants for truthfulness.  After they have sucked whatever they can from the defendant who is trying to play with them, the government will spring this information on the defendant and use their lack of candor to either get whatever they are holding back or deny them the benefit they thought they would receive.

Is this dishonest?  To a degree, yes. But it also serves the legitimate purpose of the government being in the position of using a defendant at trial where the defendant’s testimony is protected from impeachment by his dishonesty with the government or failure to be candid.  There’s nothing worse for the government than putting a witness on the stand who is subsequently impeached by a good defense lawyer for his failure to disclose prior criminal conduct.  It shows the witness is a liar and makes the government look foolish.  The government does not like to look foolish, and will take it out on their deceitful cooperator.

Does this mean that cooperation is an inherently bad choice for all defendants.  No.  But any defendant who is considering cooperation should know the pitfalls as well as the benefits.  Just as a defendant should not go to trial without knowing the positives and negatives of the choice, they should not jump blindly into cooperation with realizing that it is not a “get out of jail free” card.