A Little Legal Question

Just a hypothetical. Say you are a lawyer at trial. Say there is a witness who does not seem particularly inclined to cooperate with your side and so refuses to testify. Enterprising lawyer that you are, you decide, hey, why not give the witness an incentive. So you offer the witness $50,000 in exchange for testifying, presumably truthfully. First, would you expect that the witness would not feel some incentive to be slanted toward your side? What if there was an implied threat that if the witness did not, in your personal judgment, testify truthfully, you could take back the money? Should this be allowed?

Well, fortunately, it usually isn't. At least, it doesn't appear to be at first glance. Statutes forbid you giving valuable consideration to a witness in exchange for testimony like that. That is what is known as "bribing a witness." It doesn't matter if everyone swears up and down that despite the payment, the witness is testifying truthfully. You simply can't do it, and I think it may even be a crime (I'm too lazy to look up the specific statutes now, but I may later - I have only a narrow window of opportunity to post).

Ok, all fine and dandy, then, right? Wrong. Unfortunately, the scenario I outlined above essentially is allowed and happens every day of the week in courts all across the country. What's the difference between that scenario and what actually happens? Not much, really, except semantics. You may have guessed by now that I'm talking about prosecutors who offer lesser charges or sentences to a witness in exchange for testimony. For really, say the crime a witness is facing has a $50,000 fine. Say the witness knows he or she is likely to be convicted if brought to trial. How is the prosecutor letting the witness avoid paying $50,000 any different from paying the witness $50,000? In an accounting sense, there is no difference. Either way, the witness is better off to the tune of $50,000. I think it only gets worse when there is not only a fine, but possible prison time, or perhaps guaranteed prison time. How much is your freedom worth to you? It is worth a hell of a lot to me. Offering years of your life in exchange for testimony sounds like even more valuable consideration. So truly, prosecutors are bribing witnesses for testimony. By the letter of the law, it is illegal. But by "tradition" it is allowed, despite the apparent violation of basic common sense and logic. One court, the 10th circuit, once actually pointed this out and threw out a case on exactly this basis. Unfortunately, it lasted only nine days before it was reinstated by the circuit en banc.

Personally, I think it is bullshit. A bribe is a bribe, no matter how you want to couch it and no matter what "tradition" says. It is made worse by the fact that ONLY the prosecutor can do it. If a defendant has a reluctant witness, he's out of luck. Talk about unfair.

Personally, I'd abolish the practice altogether. But of course that will never happen. Another alternative is to allow defense attorneys the same power. Any deal the prosecutor gives to a witness gives the defense attorney comparable power to give a deal to drop charges and reduce sentences for a witness for the defense, where appropriate. What, don't like that idea? Why should it be ok for only one side to have this power, to essentially bribe witnesses? Perhaps you could make it like a mutually assured reduction thing. Neither side can do it normally, but if the prosecutor REALLY wants to do it for a witness, they can petition the court for permission, and if granetd, then BOTH prosecutor and defendant get to do it. Perhaps let the defendant have the same right of petition. Then it would be fair and even on both sides. Perhaps after a while of doing it that way, people will figure out the corrupting influence it has on testimony in general and just abolish the practice altogether. That would be fine by me.

I'm reading an excellent book on prosecutors right now that I will comment on later (I've just started it). Of course, I'm not a prosecutor. I'm not a defense attorney either. I think I have finally figured out why I have such strong pet peeves about all of the bullshit I see prosecutors doing (and getting away with). It just plain violates my inner sense of fairness. I could not quite put my finger on it before, but really, the problem is that a huge, disproportionate amount of power is in the sole hands of prosecutors, and there is no appropriate check on that power. That to me is just inherintly unfair and needs to be rectified. Don't get me wrong. I have no patience for criminals and I favor prosecuting criminals. I just want it to be fair. I want to be able to look in the mirror at night and know that I'm working in a system that treats everyone fairly and has appropriate checks on power. Right now, I don't think we have that.

Unfortunately, what happened to Nifong is the exception. Most of the time, almost all of the time, prosecutorial misconduct goes unpunished and often doesn't even stop convictions. This troubles me. It should trouble everyone.