Like Putting Lipstick on a Pig: Why the History of Crime Control Should Compel the Prohibition of Incentivized Witness Testimony Under Fundamental Fairness Principles

Linton, Caleb | June 7, 2023

Among Western nations, American courts remain uniquely permissive to the routine law enforcement practice of offering witnesses incentives to testify for the State in criminal trials. Despite laws and ethical rules roundly prohibiting the practice and recurrent skepticism of incentivized testimony in the English common law tradition, American judges have excused the practice based on pragmatism, developing legal fictions to exempt prosecutors from the general prohibition. However, basic common sense, backed by recent empirical scholarship, should alarm participants in the criminal legal system to a severely heightened risk of perjury wherever the prospect of reward compels testimony. Whether law enforcement offers these incentives in the form of cash payments, material rewards, reduced sentencing for co-defendants and so-called “jailhouse informants,” or merely relocation, they influence witnesses through unfair inducements. Paradoxically, these inducements are prohibited to the defense and categorically prohibited as bribery in all other legal contexts. Prosecutors and judges often point to existing safeguards in the legal system, including cross-examination and an illusory disclosure requirement, as sufficient to combat the risk of perjury, appealing to the difficulty of securing convictions in complex cases. However, as DNA testing continues to reveal wrongful convictions based on perjured testimony, such optimism must be viewed as misguided. Prosecutors and judges fail to recognize that the system rewards police and prosecutors who shirk their disclosure duties. These failures to disclose are nearly impossible for defendants and their attorneys to uncover once a defendant is convicted. Complicating matters exponentially, the racist and classist history of law enforcement in this country is largely responsible for the underlying reticence of many witnesses to testify in the absence of incentives. Communities of color and immigrant communities, current and historical subjects of abusive police and prosecutorial misconduct, do not trust police and prosecutors to protect their interests. So-called “white-collar” criminals intuit that the system was generally constructed to safeguard capitalist wealth-building—not undermine it. Thus, the State’s difficulty in prosecuting many accused individuals is a problem of its own making. In many areas, criminal law recognizes the extreme burden the State must carry to override the accused’s interest in freedom. In fact, the Due Process Clauses of the Fifth and Fourteenth Amendments were drafted largely to illuminate this heavy burden. For much of American history, the Supreme Court couched this burden in the language of “fundamental fairness.” Over time, however, the Court began balancing the interests of the State with those of criminal defendants as it moved away from using fundamental fairness as the primary tool for extending protections to the accused. This shift was incorrect from both a logical and historical perspective. Fundamental fairness concerns only the rights of the individual accused—not the interests of the State. Thus, this Comment argues that the Court must revive and correct its fundamental fairness jurisprudence, estopping the State from offering incentives to witnesses in criminal trials. This remedy remains the only one among many proposed to effectively combat the risk of perjury inherent to incentivized testimony while simultaneously restoring fairness concerns to their proper target: the accused. After all, the primary duty of the American prosecutor is to seek justice—not convictions.