Document Category: Cooperating Witness or Informant

This is a draft motion defenders can use to seek exclusion under Rule 403 of a co-defendant’s redacted confession that directly or indirectly incriminates your client. This motion can be used even when exclusion under the Confrontation Clause fails post-Samia (the Supreme Court’s 2023 Confrontation Clause). This motion distinguishes between the Confrontation Clause and the Federal Rules of Evidence and explains why a separate Rule 403 analysis is necessary even if the court finds no Confrontation problem (pages 8-11). It describes social science research demonstrating that (a) juries are unlikely to follow the limiting instruction to consider the co-defendant’s statement only against the co-defendant (pages 4-7) and (b) secondary confessions by a co-defendant will be weighed heavily by juries even when the co-defendant has a motive to lie or downplay their role (pages 7-8). Taken together, this research shows that the likelihood of unfair prejudice is extremely high and outweighs any interest the system may have in a joint trial, requiring either severance of the trials or exclusion of the co-defendant’s redacted confession under Rule 403.

Overview of social science suggesting that juries do not accurately assess bias/motivation to lie in cooperating witnesses.

Affidavit submitted by proposed defense expert detailing the existing research on how juries perceive the testimony of jailhouse informants (otherwise called “secondary confessions.”)