Opinion

United States v. Adalberto Cervantes-Pacheco, Jerry Wayne Nelson and William E. Nelson

  • 826 F.2d 310
  • 23 Fed. R. Serv. 1232
  • 56 U.S.L.W. 2175
  • 1987 U.S. App. LEXIS 12015
Court
Court of Appeals for the Fifth Circuit
Filed
Aug 21, 1987
Status
Published
Author
Rubin
On the bench
Clark, Goldberg, Gee, Rubin, Reavley, Politz, Randall, Williams, Garwood, Jolly, Higginbotham, Davis, Hill, Jones
Cited by
135 cases
Authority
More cited than 25.5%

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).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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