Supreme Judicial Court (September 27, 2010)

Prosecutors may not provide (or participate in providing) monetary awards to witnesses contingent on a defendant's conviction.

A jury convicted the defendant of second-degree murder and related charges stemming from a shooting. From a window, two witnesses saw an argument that preceded the shooting and heard gunfire, but did not see the shooting. Before trial, the two witnesses each received $3,000 from the local area Chamber of Commerce pursuant to its reward program for information leading to indictments in an unsolved homicide. The program awarded the witnesses an additional $2,000 following their testimony that led to the defendant's conviction.

The prosecutor did not fund the rewards, decide who should receive them, or endorse the program, and also informed the defense attorney in advance about the Chamber of Commerce payment of fees. However, the prosecutor did write a letter to the Chamber of Commerce verifying the witnesses' participation in the trial process and the ultimate conviction of the defendant. The defendant appealed his conviction, arguing that the circumstances in which these payments were made to the witnesses violated his due process rights.

The Court affirmed the defendant's conviction, but admonished the practice of prosecutors participating, even indirectly, in programs that reward witnesses contingent upon convictions.

The Professional Rules of Conduct prohibit the practice of compensating fact witnesses beyond their time lost and for expenses reasonably incurred in attending or testifying. Under the Massachusetts Rule of Professional Conduct - 3.4(g):

A lawyer shall not: ...

(g) pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:

(1) expenses reasonably incurred by a witness in attending or testifying

(2) reasonable compensation to a witness for loss of time in attending or testifying

(3) a reasonable fee for the professional services of an expert witness....

"A prosecutor who provides verification letters after a defendant's conviction, amounts to the indirect provision of money to fact witnesses contingent on the outcome of the defendant's trial."

With respect to a situation where payment for a witness's testimony is not contingent on the outcome of the case, the Court adopted Federal procedural safeguards when analyzing a defendant's due process challenge:

(1) A witness-fee arrangement must be disclosed to each defendant against whom the witness will testify before the proceeding at which the witness testifies;
(2) The defendant must be afforded an opportunity to cross-examine the witness about the fee arrangement;
(3) The court must instruct the jury about the heightened scrutiny to be given testimony provided under a fee payment arrangement; and
(4) There can be no indication that the government is sponsoring or suborning perjury.

Because the above safeguards were followed in the case at hand, the Court upheld the defendant's convictions.