Testimony for Sale: The Law and Ethics of Snitches and Experts

Abstract

As a general rule, payments to witnesses in return for testimony are considered unethical and illegal. There are, however, two major exceptions to that general rule: 1) compensation (either immunity from prosecution, reduced charges, sentence reduction, or cash) by the government to cooperating witnesses in criminal prosecutions; and 2) fees to expert witnesses in civil and criminal cases.

Is reliance on paid witnesses in these two contexts necessary, as suggested by its continued acceptance, despite criticism? Does it contribute to justice, or diminish it? Are cross-examination and cautionary jury instructions adequate safeguards against the dangers of perjured or tailored testimony? Are there workable additional measures that would further diminish those dangers? Are there alternatives to unilateral recruitment and preparation of paid witnesses? This article addresses these questions. It looks at government-compensated cooperators and adversary-paid experts together because of the common risks and procedural challenges that they pose.

Part II describes existing constraints on payments to witnesses in the rules of legal ethics and criminal statutes. Part III explores the history of the two exceptions to those constraints, including current practice and case law, and discovers a similar evolution in both areas. What began as a process controlled by the discretion of the courts has become largely controlled by adverse parties. Adversary control of both types of paid witness has remained durable despite criticism for more than a century.

Part IV analyzes and critiques the justifications for current practice. It concludes that the dangers of paid testimony for distortion of truth are unacceptably great when the selection and compensation of paid witnesses and the development of their testimony are unilaterally controlled by an advocate, even a "neutral" prosecutor, and that existing safeguards are inadequate because the sources of distortion remain largely hidden from the trier of fact.

Part V explores reforms in each area that would, as conditions to the admissibility of compensated witness testimony: 1) limit unilateral adversary control over the process of selecting, preparing and compensating witnesses; and 2) make that process more fully discoverable and, therefore, more accessible to assessment by triers of fact. It attempts to avoid unworkable administrative burdens on courts by suggesting procedures that would be driven primarily by the initiatives of the parties, but would provide for more neutrality and transparency.