3.9 Testimony of Witnesses Involving Special Circumstances—Immunity, Benefits, Accomplice, Plea

            You have heard testimony from [name of witness], a witness who

            [might receive or has received immunity.  That testimony was given in exchange for a promise by the government that [the witness will not be prosecuted] [the testimony will not be used in any case against the witness]];

[might receive or has received [benefits] [compensation] [favored treatment] from the government in connection with this case];

[[admitted being] [was alleged to be] an accomplice to the crime charged. An accomplice is one who voluntarily and intentionally joins with another person in committing a crime];

[pleaded guilty to a crime arising out of the same events for which the defendant is on trial.  This guilty plea is not evidence against the defendant, and you may consider it only in determining this witness’s believability].

            For [this] [these] reason[s], in evaluating the testimony of [name of witness], you should consider the extent to which or whether [his] [her] testimony may have been influenced by [this] [any of these] factor[s].  In addition, you should examine the testimony of [name of witness] with caution than that of other witnesses.

Comment

            The instruction to consider accomplice testimony with “greater caution” is appropriate regardless of whether the accomplice’s testimony favors the defense or prosecution.  United States v. Tirouda, 394 F.3d 683, 687-88 (9th Cir. 2005).  The Committee recommends giving this instruction whenever it is requested. At least in some cases, a cooperating witness will not have received benefits at the time of his testimony, but may hope for future benefits, such as a reduced sentence, a Section 5K1.1 motion from the Government, Federal Criminal Procedure Rule 35 sentence reduction, or other benefit. The Committee recommends giving this instruction even when a benefit to the cooperating witness has not yet materialized.

Revised August 2026