Step Eight: Obtain the Cooperation of an Inside Witness

Many complex corruption and fraud cases cannot be made without the cooperation of an inside witness. This might be an honest observer, perhaps an employee who quit because he or she was aware of fraud or corruption but did not want to participate.   Or it could be a lesser participant in the wrongdoing who is more valuable as a cooperating witness than a subject.

Strategies to Obtain the Cooperation of an Inside Witness

The honest insider may still reluctant to cooperate in the investigation because of fear of exposure or retaliation. If so, emphasize the importance of the witness’s cooperation and the guarantee of confidentiality, if the witness demands it. It also is important in such cases to collect as much evidence as possible from other sources so that the insider does not feel that he or she is the only witness in the case.

Obtaining the cooperation of an insider who is involved in the wrongdoing is more often the result of negotiation than interrogation. Success usually requires:

  • Building a strong case against the witness, which might be based on evidence of transactions other than those involved in the case in which you hope to obtain his or her cooperation.   This would include being prepared to rebut his or her anticipated defenses or excuses;
  • Convincing the witness that you are prepared and willing to move against him or her immediately, with the result that the witness will most certainly be sanctioned;
  • Offering the witness the opportunity to cooperate to avoid sanction, or more often, to mitigate any penalty that might result;
  • Assure the witness of confidentiality if the witness demands it. It is better, of course, if the witness would be willing to be identified and testify, but if not, the witness might still provide useful leads.

Never try to coerce cooperation by threatening a witness with an action that is not justified; this is not ethical, it won’t work and it will create a new set of problems.

Below are some other factors that can help obtain the cooperation of a culpable insider:

Provide a face-saving excuse

Offer the witness a rationalization to ease the embarrassment of disclosure. In a bribery case, for example, the investigator might suggest to the bribe payer that the recipient extorted the payments, and that the payer had no choice but to pay. Further examination of the witness will yield the actual circumstances.

Ask for a “proffer”

Negotiations for cooperation sometimes reach a stalemate because the investigating party is unwilling to negotiate to obtain a witness’s cooperation without knowing what the witness is prepared to say, and the witness is unwilling to cooperate until he has a deal. In such cases it might be useful to solicit an off-the-record “proffer,” usually through counsel, of what the witness would say, at least in substance, and how it could be corroborated, if a deal was reached. The parties would agree that such statements would not be used if the discussions fail.

Cooperation agreement

The agreement to cooperate should be in writing, if feasible, and state that the deal is contingent on the full and truthful cooperation of the cooperating witness, and that the investigating party has the right to void the agreement and use the witness’s statements against him if he or she is not completely truthful.

Dealing with Witness Demands

The witness might ask for one or more of the following before agreeing to cooperate:

  • That he or she be promised “immunity” from criminal prosecution, or at least
  • That the case not be referred to government authorities for prosecution
  • That he or she be given a “release” from civil liability
  • That he or she be indemnified against any claims against him as the result of his or her cooperation.

Request for immunity

Only a prosecutor can grant immunity from criminal prosecution. A private party, however, can agree to inform the prosecutor of the value of the subject’s cooperation and to request leniency or immunity.

Agreement not to refer for prosecution

Private sector or international organizations may enter into such agreement; most organizations are not required to report all misconduct, and prosecutors are not required to prosecute it.

Request for indemnity

The witness might worry that the subject will bring a civil action for defamation or some other claim against him or her as the result of his or her cooperation, and ask the investigating organization to agree to indemnify (pay) any expenses or judgments that might result. Such a request should be referred to counsel, and if approved, which is unlikely, should be limited in its terms and dependent on the full and truthful cooperation of the witness.

Request for a release

A release is an agreement to accept the terms of a settlement in full satisfaction of a civil claim, and to “release” a party from any further liability. Execution of a release is standard practice in the settlement of civil claims, including fraud cases.

USE EVIDENCE OF FRAUD OR OTHER MISCONDUCT TO LEVERAGE COOPERATION

In corruption cases, bribe payers often commit frauds, such as submitting false or inflated invoices, to generate bribe funds. It is often easier to prove the fraud than the underlying bribe, and to use that evidence to induce the bribe payer who committed the fraud to cooperate.   In such cases, the bribe payer may save face and find it easier to agree to cooperate by saying that the corrupt official – the bribe recipient – suggested or directed that the bribe payer commit the fraud to generate the bribe funds.