November 28, 2013
Law experts: Payments to witnesses rare, foolish
By Douglas Moser
Police payments to witnesses in exchange for testimony is “very rare” because disclosure of the payment can discredit that witness’s statements and raise red flags about witness and police motivation, according to local legal experts.
Lawrence police paid a city man, David Rivera, $1,000 in 2007 for his testimony about a murder that year in Lawrence, according to the suspect’s defense attorney in the case, the Essex County District Attorney’s office and Superior Court documents.
Ronald Ranta, the defense attorney, and Carrie Kimball Monahan, spokeswoman for Essex County District Attorney Jonathan Blodgett, said the attorneys involved did not know of the payment before the jury trial began. But because the payment was not disclosed before the trial, the judge barred Rivera, a key but reluctant witness for the prosecution, from testifying.
“It raises ethical issues about the manner in which the testimony is obtained, and gives the defense additional avenues of attacking the credibility of that testimony,” said Michael Coyne, associate dean and professor at Massachusetts School of Law in Andover. “It’s a foolish mistake without any real benefit.”
Payment in exchange for testimony, with the exception of expert witnesses, “almost never” happens, said Salem, N.H., attorney Mark Stevens.
“Typically a defense attorney as part of discovery asks for (disclosure of) promises and inducements,” Stevens said. “Usually it’s in the form of a plea deal. It’s absolutely bizarre.”
Larry Siegel, a professor of criminal justice with expertise in delinquency, criminology and corrections at the University of Massachusetts Lowell, said when payments are made, they typically come from the district attorney’s office, not the police.
“I’ve never heard of this. It’s controversial when the prosecutors pay because it taints the evidence,” Siegel said. “A bunch of prosecutors have cut that out for that reason. And typically when they pay, it’s minimal — transportation, expenses. But they wouldn’t say, ‘We’ll give you $1,000.’ You could argue for when a prosecutor pays an expert witness, but that is that. For the police to do it, that’s unheard of.”
Payments to witnesses is not illegal, Coyne and Stevens said. And Coyne would not call such payments strictly ethical, though he stopped short of saying they were unethical, so long as the defense is informed.
“It’s not ethical to do it and fail to disclose it,” Coyne said. “But I don’t believe the DA’s office would have been aware of it simply because it’s a practice, while permissible ethically, is frowned upon because it raises a real question about whether you’re paying for false testimony or for testimony that otherwise wouldn’t exist without the payment.”
Police or prosecutors sometimes pay travel, hotel and clothing costs of some witnesses.
“The key to it is whether the payment is to pay for travel expenses,” Stevens said. “That’s common, airfare, mileage fees, hotel, things like that. But they can’t pay someone to testify favorably.”
Ranta filed a number of motions in Superior Court in October 2009 once he found out, days into the murder trial of Rudy Cruz, about the payment to seek documents about payments police made to Rivera in exchange for his testimony.
He said he believed the assistant district attorney prosecuting the case, Jessica Connors, also did not know about the payment.
“I think it’s very rare,” Ranta said of payments to witnesses for testimony. “And the government obviously doesn’t want to do it, because once it becomes known, it taints the value of the testimony. If it’s money, the inducement isn’t seeking the truth.”
Essex County Superior Court Judge Richard Welch III held a hearing on the payment once it was disclosed, and ruled that Rivera could not testify because the defense was not informed of the payment before the trial.
Rudy A. Cruz was arrested for the shooting death of a Lawrence man on Farnham Street in Lawrence in 2007. Rivera was one of a few people who actually saw the shooting take place, according to grand jury testimony.
Rivera’s attorney in 2009, Michael Seddon, gave a hand-written note to Ranta during the trial, breaking the news that Rivera had been paid $1,000 by police before his 2007 grand jury testimony, according to Superior Court documents.
According to grand jury transcripts from 2007, Rivera was compelled to testify, and Seddon’s note said Rivera still did not want to take the stand.
Rivera’s grand jury testimony did not vary substantially from the testimony of other witnesses, though he was on Farnham Street at the time and saw one man fire several shots into another man at close range, according to the transcripts.
Follow Douglas Moser on Twitter @EagleEyeMoser.
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