What to Watch for in the FIFA Case, Part 4: The Challenge of Preparing a Defense

06/23/2015 09:05 am ET | Updated Jun 21, 2016

This is one of a series of posts discussing what the FIFA case might tell us about the American criminal justice system. Click here for the introduction, here for "Part 1: Pretrial Publicity," here for "Part 2: How the Government's Story Develops," and here for "Part 3: The Special Problem of the 'Cooperating' Witness."

My focus so far has been on the prosecution side of a FIFA-type case, and the issues relating to how the government secures the testimony it will use to build its case. There are equally controversial issues relating to the other side of such a case--the defendant's ability to present a defense.

One of the fundamental principles of any decisionmaking process is that there are two sides to every story, so that people on both sides should have full and fair opportunities to present their cases. This concept is part of our DNA as human beings with ingrained senses of fairness, and we'd like to think it applies universally--in the formal justice system in which life and liberty are at stake, in a dispute between two children over who spilled the juice, and in every setting in between. So we'd probably assume that in the FIFA case, after the prosecution has made its case for guilt, the defendants will have their chances to present robust, vigorous defenses highlighting all of the evidence that points towards their innocence.

In fact, once again, the reality is quite different. Even when powerful defense evidence exists, a defendant seeking to bring it into a case faces formidable legal and practical barriers.

Imagine that one of the FIFA defendants, Mr. A, claims to be innocent--contending, for example, that although he may have been involved in making payments to others, he always believed they were legitimate and had no idea that they were in fact disguised bribes. Imagine further that there's a witness, Ms. B, who could support this contention by testifying that she observed several conversations in which others gave Mr. A legitimate explanations for the payments before they were made. This could obviously be powerful evidence in Mr. A's favor, and could be especially critical if others (including "cooperating" witnesses) testify that Mr. A knew all along that the payments were bribes. So clearly, Mr. A's lawyer will be able to put Ms. B on the stand and let the jurors decide between the competing accounts, right?

Maybe . . . but maybe not. There are several reasons why Ms. B's exculpatory testimony may never see the light of day.

First, it's far from a sure thing that Ms. B will ever agree to testify voluntarily, because she will probably hear a clear message that it's in her best interests not to.

One common feature of FIFA-type cases (those involving white collar and corruption-related offenses) is that the key witnesses tend to be on the inside. The cases tend not to center on traditional evidence such as eyewitness identifications or descriptions of who was standing where. Instead, they typically turn on issues such as why certain transactions were carried out and who knew what when.

Almost by definition, the people who will know those details are people who were close enough to the charged conduct to be vulnerable themselves if prosecutors choose to target them. Prosecutors and agents typically aren't shy about letting these potential witnesses know that, particularly if they get wind that they're considering testifying for the defense. And if these witnesses get their own lawyers, those lawyers will similarly tell them that entering the case on the defense side can risk drawing prosecutorial scrutiny that could otherwise be avoided.

These practical considerations are backed by solid legal protections. If a witness whose testimony is sought by the defense can make any plausible claim that her testimony could be used to support a case against her--a virtual certainty in a FIFA-type case--she has an absolute Fifth Amendment right not to testify.

And this is where one of the most frustrating asymmetries in the system rears its head. If the prosecutor needs a witness who has concerns about incriminating herself, he has the power to "immunize" the witness's testimony--that is, to get an order ensuring that the testimony can never be used against that witness, at which point the witness can be forced to testify.

A defense attorney has no such power. If a potential defense witness refuses to testify on self-incrimination grounds, that's the end of the matter; the witness simply never shows up in the case. The jurors never even learn that there was a witness who could have testified. As a result, they can be left with the impression that the case is one-sided, with no evidence pointing towards innocence.

Even witnesses without self-incrimination claims may be effectively unavailable to the defense. In theory, absent a Fifth Amendment claim or other applicable privilege, a defense attorney (like a prosecutor) can compel the appearance of even an unwilling witness through a subpoena. This is of little value, however, if the attorney hasn't had a chance to meet with the witness beforehand to find out what her testimony will be. Many lawyers say that they'll never ask a witness a question at trial if they don't know the answer beforehand. This rule isn't universally followed, but it rests on a solid principle--it can be disastrous to call a witness who gives unexpected answers to critical questions.

A defense attorney has no authority to compel a pre-testimony meeting. Prosecutors, on the other hand, have virtually unlimited power to find out ahead of time exactly what a witness's testimony will be. A prosecutor's or FBI agent's suggestion that a meeting would be a good idea tends to carry more weight than the same proposal from a defense attorney. And in the rare case in which a witness declines that invitation, the prosecutor can subpoena her to a closed-door grand jury session, where testimony on virtually any topic can be compelled and transcribed. There is, of course, no equivalent of this process on the defense side.

This isn't to say, of course, that it's impossible to secure the testimony of defense witnesses. Not all prosecutors employ the full range of formal and informal pressure tactics available to them. Not all defense witnesses are close enough to the cases to fear personal exposure, and even some of those who are have enough courage and integrity to participate honestly and risk whatever consequences may come.

Still, it's indisputable that the two sides differ vastly in their abilities to develop evidence to present their cases--one more thing to keep in mind as we consider whether the story that eventually emerges through the FIFA case will be a full and accurate one.