When trying to prosecute many crimes, the only way that the U.S. Attorney’s office can get some necessary evidence is to get it from people who were involved in the crime being prosecuted. People involved in criminal activity try to cover their tracks and make sure that they only people who know about the crime are the participants. The problem for the U.S. Attorney’s office is that the people involved in the crime will not testify truthfully because by doing so they would be incriminating themselves, and the 5th Amendment bars the prosecutors from forcing the testimony. If the testimony is necessary to successfully prosecute the crime, prosecutors will sometimes agree not to prosecute someone who had a minor role in the crime in exchange for the information. These non-prosecution agreements are only entered into reluctantly and only if there is no other way for prosecutors to get the information. Before seeking a non-prosecution agreement, prosecutors will attempt to use three other ways to get the necessary information:
- Try to Convict the Person With a Minor Role – If possible and if time permits, prosecutors will attempt to get a criminal conviction for the person from whom they need testimony. This allows them to offer an agreement for a lighter sentence in exchange for cooperation.
- Plea Bargain – Prosecutors will attempt to enter a plea bargain with the person. They will seek to reduce the number or degree of criminal charges in exchange for cooperation.
- Seek a Court Order Compelling the Testimony – Despite the 5th Amendment right against self-incrimination, a judge can order someone to testify. However, the testimony provided cannot be directly or indirectly used against the person so compelled except in prosecutions for failing to comply with the order or perjury.
If those three methods of getting cooperation are not good options under the circumstances, then prosecutors will consider entering into a non-prosecution agreement. However, Justice Department policy only allows prosecutors to enter into a non-prosecution agreement if there is no other way to get the information, the public interest is furthered by entering into the agreement and a supervisor approves the non-prosecution agreement.
Other Ways to Get the Information are not Available
Prosecutors often prefer to have eyewitness testimony as it is usually more compelling for a jury. However, if prosecutors can prove the same thing in a criminal trial with other types of evidence, they will do so before entering into a non-prosecution agreement. For example, in a complicated money laundering case, prosecutors might want to have the testimony of someone who had a minor role in the scheme as a middleman. For obvious reasons, that person will not want to testify and incriminate himself. Even though prosecutors might prefer the testimony, they will not agree to a non-prosecution agreement if the same evidence can be introduced at trial by bank records.
The general policy of the government is that people who have engaged in criminal activity should face some kind of punishment for that activity as that serves the public interest. There are times, however, when the public interest is better served by entering into non-prosecution agreements. Some factors that prosecutors will consider in making this judgment are:
- The importance of the case to enforcement of criminal laws in the United States. The bigger that a case is, the more likely that it will be in the public interest to enter into a non-prosecution agreement with one person to get a conviction of another person. For example, to convict persons who are part of a large-scale, nationwide drug-trafficking enterprise the public interest might be served by a non-prosecution agreement with someone who played a minor role in the enterprise, but it might not be in the overall public interest to do so for a case involving a small, local conspiracy to sell illegal drugs.
- The more valuable the person’s cooperation is to the prosecution’s case, the more likely that a non-prosecution agreement will be in the public interest. Someone with only tangential information about a small portion of a criminal enterprise is less likely to be offered a non-prosecution agreement than someone who can testify to the entire operation.
- The criminal history and culpability of the person will also be considered. Prosecutors will not seek non-prosecution agreements with people who have previously committed many crimes or who can only offer information about their own subordinates in the criminal enterprise.
Approval of Supervisors
Because the government would prefer to get necessary information about criminal activities by other means, the prosecuting attorney who wishes to enter into a non-prosecution agreement must have his or her supervisor sign off on the agreement.
Limitation of Agreement
Finally, the government will seek to carefully limit the scope of any non-prosecution agreements. The agreements will be carefully worded to only offer immunity from prosecution for the specific crimes in question and only in the specific jurisdictions those crimes were believed to have been committed in. Non-prosecution agreements are not blanket get out of jail free cards.