{"id":350,"date":"2010-10-15T22:58:34","date_gmt":"2010-10-16T05:58:34","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=350"},"modified":"2016-10-01T13:13:19","modified_gmt":"2016-10-01T17:13:19","slug":"cash-for-convictions","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/cash-for-convictions\/","title":{"rendered":"Cash for Convictions"},"content":{"rendered":"

\u201cThe interests of justice…are not well served when a witness\u2019s reward is contingent on the conviction of a defendant rather than the provision of truthful information or testimony.\u201d\u00a0 Not a terribly shocking assertion, right? More shocking: it was lifted from Commonwealth v. Miranda<\/a><\/em>, a recent Massachusetts Supreme Court decision on a challenge to a second-degree murder conviction.\u00a0 Wayne Miranda\u2019s conviction was partially based on the testimony of two witnesses whom the local chamber of commerce paid $3,000 for testifying in defendant\u2019s trial and an additional $2,000 if their testimony led to Miranda\u2019s conviction.\u00a0 Moreover, the witnesses received the $2,000 only after the prosecutor\u2019s office faxed a verification letter to the chamber.\u00a0 Miranda\u2019s conviction was upheld.<\/p>\n

Sure, witnesses are often compensated in some way for their services, e.g., witness protection programs or reimbursement for obvious expenses incurred.\u00a0 And, yes, at least a few local governments throughout the U.S. provide monetary rewards for information that leads to solving crimes.<\/p>\n

But payment in exchange for testimony contingent on conviction?\u00a0 Well, according to the Court\u2019s decision, it is apparently widespread enough for the 11th Circuit, 8th Circuit, 6th Circuit, and the Iowa Supreme Court to have considered it within the past forty years.\u00a0 (In each of these cases, the U.S. Supreme Court denied cert.)\u00a0 More interestingly, these courts held that the defendant\u2019s due process had not been violated by the practice.<\/p>\n

What, then, did the Massachusetts high court have to say about it?\u00a0 It did not find a due process violation for a number of reasons.\u00a0 Miranda\u2019s attorney was aware of the deal before trial and cross-examined the witnesses on it.\u00a0 Noting the deal explicitly, the judge twice instructed the jury to rigorously scrutinize the testimony and provided thorough witness credibility instructions.\u00a0 Additionally, both witnesses \u201cwere competent to testify despite the…pending financial incentives\u201d and were not facing criminal sanctions themselves, which, the Court asserted, would more so encourage lying.\u00a0 Further, despite inconsistencies between their testimony and a third witness\u2019s, the witness\u2019s testimony corroborated other evidentiary details.\u00a0 In light of the same factors, the reward program neither conflicts with \u201cthe concept of ordered liberty,\u201d nor constitutes a structural error, as it did not prevent the criminal trial from performing its function.\u00a0 Nonetheless, the Court concluded that prosecutors \u201cmay not provide (or participate in providing) monetary awards to witnesses contingent on a defendant\u2019s conviction.\u201d<\/p>\n

The Court\u2019s analysis here is not particularly convincing.\u00a0 It\u2019s possible that well-coached, untruthful testimony could have withstood vigorous cross-examination and comprehensive jury instructions and deliberations.\u00a0 Furthermore, the Court simply concludes the witnesses\u2019s competence without providing any sort of supporting rationale.\u00a0 That the witnesses would have had more incentive to lie if they were facing criminal prosecution says very little about the incentive – probably a very strong one – they had to stretch the truth for a potential $3000 reward.\u00a0 Indeed, $3000 is not an insignificant amount of money, especially in a town where the 2008 median income was $38,500<\/a>.\u00a0 Lastly, post-conviction reversal or retrial if it is determined that the witness(es) were lying will not adequately compensate a convict for the trial experience, the conviction, and any time served.\u00a0 Indeed, since standards of review for evidence sufficiency in such cases are quite conviction-friendly, it\u2019s not clear that any such review could be effective.<\/p>\n

If, then, the Court\u2019s due process analysis is fairly weak, it probably cannot support the Court\u2019s conclusions about the systemic issues posed by the cash-for-guilt program.\u00a0 Yet, even if the due process analysis were fairly strong, it\u2019s far from clear that it would support the Court\u2019s conclusions about the validity of the entire program.\u00a0 Sure, if the facts in a particular case suggest that due process was provided, a court might conclude that the program had not violated due process as applied, but not that the program never posed a significant threat to ordered liberty or the integrity of the criminal justice system.\u00a0 The Court\u2019s nearly immediate conclusion, made pursuant to its \u201csuperintendence authority,\u201d that the prosecutors may not participate in this program or any like program seems to suggest that the Court does in fact believe that the program is an affront to liberty and due process or, at the very least, the integrity of the criminal justice system.\u00a0 And such a conclusion is not so surprising, in light of the obvious due process concerns and tremendous practical issues (e.g., diminished faith in the criminal justice system when the state is found to be paying for convictions and sometimes, consequently, convicting innocent\/not-so-guilty defendants, more convictions overturned on appeal, etc.) that are implicated by such a program.<\/p>\n

Given these semi-contradictory conclusions and the Court\u2019s opaqueness here, it is not easy to understand what concerns underlie the Court\u2019s rationale.\u00a0 Perhaps its decision can be seen as a compromise of sorts: an expression of disapproval but a reluctance to strike down the program entirely, for fear of the havoc such action might wreak on witness compensation programs (and convictions obtained through them), of the potential First Amendment and practical concerns such restrictions might implicate, or of making a broader decision than required.<\/p>\n

In any case, the decision raises broader questions about criminal justice practice throughout Massachusetts and the rest of the country.\u00a0 How common are such cash-for-conviction programs (Recall the recent scandal<\/a> involving PA judges sending juveniles to jail for kickbacks)?\u00a0 How much is actually known about their use?\u00a0 What is the best approach for putting an end to them?\u00a0 Is that a feasible goal?\u00a0 Are officials participating in these programs aware of the serious procedural and credibility issue they pose?\u00a0 And if they are (or if they\u2019re not, for that matter), what does their participation say about our criminal justice system?<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cThe interests of justice…are not well served when a witness\u2019s reward is contingent on the conviction of a defendant rather 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