holding that informant who receives contingent fee is not disqualified from testifying, and stating that, "[a]s in the case of the witness who has been promised a reduced sentence, it is up to the jury to evaluate the credibility of the compensated witness.”
How later courts described this case
- holding that informant who receives contingent fee is not disqualified from testifying, and stating that, "[a]s in the case of the witness who has been promised a reduced sentence, it is up to the jury to evaluate the credibility of the compensated witness.”
- noting that “[n]o practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime to which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence”
- noting that “employment of a witness for a fee con- tingent upon victory for the party in whose favor he testifies Nos. 04-2557, 04-2592 17 is a violation of both the Model Rules of Professional Conduct [Rule 3.4] and the Code of Professional Responsi- bility [DR 7-109]”
- noting that "employment of a witness for a fee contingent upon victory for the party in whose favor he testifies is a violation of both the Model Rules of Professional Conduct [Rule 3.4] and the Code of Professional Responsibility [DR 7-109]"
Written by the judges who cited it.
The opinion
ALVIN B. RUBIN, Circuit Judge,
concurring:
The employment of a witness for a fee contingent upon victory for the party in whose favor he testifies is a violation of both the Model Rules of Professional Conduct 1 and the Code of Professional Responsibility. 2 Yet, because a person interested in the outcome of a case is a competent witness, experts employed on such a contingent-fee basis have been permitted to testify. 3 No court, so far as I have been able to find, now excludes contingent-fee testimony. The prosecuting attorney is therefore permitted to adduce evidence in a criminal case despite the fact that it is gained by a breach of ethical standards. As the majority opinion points out, the government may also offer witnesses plea bargains for either a reduced sentence or immunity in exchange for their testimony and thus provide an incentive greater even than a contingent fee. If the government may do so, the defendant presumably may also employ experts and other witnesses to testify for a fee contingent on his acquittal. While this balances opportunity equally, it patently permits perversion of the trial process, and I am therefore troubled by the possible results of our decision. Because, however, both the Supreme Court decision in Hoffa v. United States 4 and the decisions of every other circuit appear to sanction the use of such testimony, I concur in the result.
. Model Rules of Professional Conduct Rule 3.4 (1983).
. Model Code of Professional Responsibility DR 7-109 (1980).
. Petition of Shore, 93 Misc.2d 933 , 403 N.Y.S.2d 990, 993 (1978); New England Telephone & Telegraph Company v. Board of Assessors of Boston, 392 Mass. 865 , 468 N.E.2d 263, 268 (1984).
. 385 U.S. 293 , 87 S.Ct. 408 , 17 L.Ed.2d 374 (1966).