Supreme Judicial Court quashes cash-for-testimony

Can I get a witness
By HARVEY SILVERGLATE  |  October 6, 2010

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The Supreme Judicial Court of Massachusetts made a pronouncement last week that, to rational citizens, should be obvious: it's a bad idea for the state to be complicit in a scheme to pay criminal trial witnesses for their testimony — and for those witnesses to receive a bonus if the defendant is convicted.

Simple, right? Obvious to us, and to the SJC — but not to the federal courts, which hold that payments to witnesses don't violate the accused's federal constitutional right to "due process of law," so long as they are disclosed to the defendant's lawyer,

The issue arose in the case of Commonwealth of Massachusetts v. Wayne Miranda. Miranda's second-degree murder conviction was based in part on the testimony of two witnesses, each of whom received payment from the New Bedford Area Chamber of Commerce. The chamber sponsors a program to pay witnesses $3000 for testimony leading to an indictment; for testimony leading to a conviction, witnesses get another $2000.

This is dangerous ground. It is not uncommon for police departments and municipalities, as well as private companies or civic associations, to provide rewards for information leading to the arrest of alleged miscreants. And few would argue that such payments constitute a problem. The trouble arises when payments are made in direct exchange for trial testimony and, worse, contingent upon producing a conviction. The negative effects of this scheme cut both ways: not only might a witness be tempted to twist the truth in order to get a paycheck, but a skeptical juror might vote to acquit a guilty defendant based on this very suspicion. In either event, justice can seriously miscarry.

To make things worse, in this case, the state was complicit with the chamber's pay-for-say program. The Bristol County DA's office didn't directly dole out the funds, nor did it formally endorse the program. But it did provide the chamber with letters of recommendation, asserting that the witnesses played a key role in the indictment and conviction. In effect, the DA gave the witnesses its stamp of approval.

Miranda's lawyers appealed, arguing that the testimony against him was bought and paid for. Clearly, the court was disturbed by the chamber's program and even more disturbed by the DA's tacit support of it. If federal courts had felt the same way, the SJC would have had to throw out the conviction.

But the federal courts have long insisted that such payments are constitutional when disclosed to the jury, even in jurisdictions where the practice would arguably run afoul of state bribery and obstruction-of-justice laws.

In the end, the court upheld Miranda's conviction, saying that under all of the circumstances, there was sufficient reliable evidence to find him guilty. But exercising the supervisory powers granted to it by the state constitution, the court banned all future involvement by prosecutors in programs where a witness's monetary reward depends on obtaining a conviction.

This isn't the first instance in which the SJC has held the Bay State to higher civil-liberties standards than are mandated at the federal level. Protections of political free speech during elections, contained in the Declaration of Rights of the Massachusetts Constitution, extend further than the analogous federal First Amendment guarantees, the SJC ruled in a 1983 case (Batchelder v. Allied Stores Corporation, concerning a citizen's right to collect signatures in a private shopping mall to nominate a political candidate).

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  Topics: News Features , Suffolk County, Supreme judicial court, Federal court
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