Wednesday, August 29, 2018

Should It Be Illegal for Prosecutors to "Flip" Witnesses?

by Alan M. Dershowitz • August 29, 2018 at 5:00 am

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.

Judge T.S. Ellis (right), 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. (Image source: Fox News video screenshot)

Recently President Trump said that "flipping" a witness to incriminate a prosecutorial target "almost ought to be outlawed," saying that individuals who flip are often untruthful.

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.