August 29, 2018 at 5:00 a.m.
Gatestone Institute
Re-posted by Nicholas Stix
- It is already illegal for a lawyer to offer a witness a valuable consideration for providing testimony -- if the lawyer is a defense attorney. If any defense attorney offers a witness an inducement to testify favorably to his client -- even if his testimony is 100% truthful -- that lawyer will be disbarred, prosecuted and imprisoned. But it is perfectly legal, indeed widely regarded as commendable, for prosecutors to offer major inducements in order to get witnesses to testify against their targets.
- Here is what the statute says: "Whoever... directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness" is guilty of a felony. [U.S. Code § 201 (c)(2), emphasis added]
- Every day, these tactics are being used against ordinary Americans caught up in our deeply flawed criminal justice system that relies far too heavily on the testimony of flipped witnesses.
This statement raises the important question of whether it should be illegal to offer a witness a valuable consideration for providing testimony, as prosecutors allegedly did with Lt. Gen. Michael T. Flynn.
Interestingly, it is already illegal for a lawyer to do that -- if the lawyer is a defense attorney. If any defense attorney offers a witness an inducement to testify favorably to his client -- even if his testimony is 100% truthful -- that lawyer will be disbarred, prosecuted and imprisoned. But it is perfectly legal, indeed widely regarded as commendable, for prosecutors to offer major inducements in order to get witnesses to testify against their targets. These inducements include money, freedom from imprisonment and even life itself.
There are cases in which courts have allowed prosecutors to pay witness's contingent fees -- that is, bonuses -- if their testimony results in convictions. There are cases in which prosecutors have threatened to seek the death penalty unless a witness flips against a co-defendant. There are cases in which prosecutors threaten to prosecute wives, children, parents and siblings of witnesses unless they flip, to offer 10- or 20-year reductions in sentences in exchange for favorable testimony.
No wonder Judge T.S. Ellis, who presided over the first Manafort trial, observed that flipped witnesses sometimes have an inducement not only to "sing" but to "compose" -- that is, to embellish. Michael Cohen may have been composing when he said through his lawyer, that President Trump knew about the Trump Tower meeting between his son (Donald Trump Jr.) and a Russian. Cohen's lawyer has now, commendably, walked back this accusation.
You might wonder how all this is legal in light of the federal statute that prohibits the payment of anything of value in order to influence the testimony of a witness. Here is what the statute says: "Whoever... directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness" is guilty of a felony. [U.S. Code § 201 (c)(2), emphasis added]
A literal reading of the statute would encompass the offers and threats routinely made by prosecutors to secure the testimony of witnesses. After all, it applies to "whoever," and "any," but the courts have ruled that prosecutors are exempt from the words of the statute. Only defense attorneys and their clients are covered by it, despite the broad language.
Several years ago, a U.S. Court of Appeals applied the language of the statue to prosecutors, raising questions about the entire process of paying witnesses for their testimony. But that decision was quickly reversed by a ruling that continued the exemption of prosecutors from the coverage of the statute.
The only requirement is that prosecutors must inform the judge, jury and defense attorneys of all payments and promises made to witnesses. But such disclosure would not be enough to exempt defense attorneys or defendants from the criminal penalties provided by the witness tampering statute. This disparity unlevels the playing field of our adversary system of justice.
Civil libertarians and criminal defense attorneys have long been skeptical of the widespread tactics used by prosecutors to intimidate, induce, buy or rent witnesses. We understand how central this tactic is in the way prosecutors bring cases today. Coupled with the other side of the coin -- under which defendants who go to trial receive multiples of the sentence they would have received had they pleaded guilty -- these twin tactics explain why so few cases today ever get before a jury: Fewer than 10% in federal court. It is far more advantageous to cooperate with prosecutors than to challenge them.
Notwithstanding the importance of these tactics, they should raise troubling concerns among anyone concerned with basic fairness.
So, I welcome President Trump's statement about the unfairness of our present system of flipping witnesses, even though I realize it is somewhat self-serving. Would he and his supporters be equally concerned if a Special Counsel or other prosecutors were using these tactics against his political opponents? Nevertheless, it is important to have these issues raised and debated by all Americans. Today they are being used against Republicans, tomorrow they may be used against Democrats, and every day, they are being used against ordinary Americans caught up in our deeply flawed criminal justice system that relies far too heavily on the testimony of flipped witnesses.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "The Case Against Impeaching Trump," Skyhorse Publishing, July 2018.
2 comments:
"Civil libertarians and criminal defense attorneys have long been skeptical of the widespread tactics used by prosecutors to intimidate, induce, buy or rent witnesses. "
THEY WILL ALL BE FOR THE PROCESS IF IT USED SUCCESSFULLY AGAINST DON!!
jerry pdx
Lost all respect for Dershowitz when he publicly came out against Amanda Knox, publicly citing shallow surface evidence being passed around on the internet as being "proof" she was guilty. Dershowitz is a lawyer and I realize it's his job to argue in favor of his client no matter how stacked the evidence is against them but he had no stake in the Amanda Knox case. He had no reason to get involved in that case except he wanted to jump in on the media spotlight, media pig that he is. It might have been OK if he had taken a more careful look at the facts and realized that an injustice had been done and came out publicly in her defense but he couldn't be bothered to do that. Personally, I suspect his stance was because Rudy Guede, the real murderer of Meredith Kercher, was a black man and it gave him an opportunity to pose and posture as a noble anti racist.
I lost a lot of respect for Anne Coulter for doing the same thing. She also decided Amanda was guilty based on inaccurate and biased information being passed around on the internet. I do agree with most of what she stands for but she has strange moments when she seems to disassociate from reality.
All that being said, I stopped feeling sorry for Amanda Knox when the ungrateful ingrate started bashing Trump after he publicly defended her and gave her money for her defense.
Much of the hatred toward her and pathological belief in her guilt, despite inarguable facts that prove she is innocent, is based on the "falsely accused black man" myth. If you scout around anti Knox internet sites she is often called a racist for falsely implicating Patrick Lumumba (that she actually did) in the crime and being responsible for poor manipulated, and falsely accused, black man Rudy Guede being convicted for the crime. You'd think she would have learned something about anti white bias and how liberal black crime apologists can destroy your life but Ms. Knox hangs on to her naïve ultra liberal beliefs with every fiber of her being. I believe it's the same psychosis that causes those white women who have been raped by black men or Muslims, to defend them make excuses for their behavior. Racist blacks and white liberals have fostered an atmosphere in which a white woman feels guilty about punishing non white males for sexual assault so they turn around and fanatically defend non white males in order to prove to the world they are not "racist". It's sick and deranged but that's the world we live in now.
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