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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.
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