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

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

But payment in exchange for testimony contingent on conviction?  Well, according to the Court’s 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.  (In each of these cases, the U.S. Supreme Court denied cert.)  More interestingly, these courts held that the defendant’s due process had not been violated by the practice.

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

The Court’s analysis here is not particularly convincing.  It’s possible that well-coached, untruthful testimony could have withstood vigorous cross-examination and comprehensive jury instructions and deliberations.  Furthermore, the Court simply concludes the witnesses’s competence without providing any sort of supporting rationale.  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.  Indeed, $3000 is not an insignificant amount of money, especially in a town where the 2008 median income was $38,500.  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.  Indeed, since standards of review for evidence sufficiency in such cases are quite conviction-friendly, it’s not clear that any such review could be effective.

If, then, the Court’s due process analysis is fairly weak, it probably cannot support the Court’s conclusions about the systemic issues posed by the cash-for-guilt program.  Yet, even if the due process analysis were fairly strong, it’s far from clear that it would support the Court’s conclusions about the validity of the entire program.  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.  The Court’s nearly immediate conclusion, made pursuant to its “superintendence authority,” 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.  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.

Given these semi-contradictory conclusions and the Court’s opaqueness here, it is not easy to understand what concerns underlie the Court’s rationale.  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.

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