Discussion of compensation for when interviewing witnesses:
- “A lawyer shall not . . . offer an inducement to a witness which is prohibited by law.” AR 27-26, Rule 3.4(b). As stated in the Comment, “it is not improper to pay witness’ expenses or to compensate as expert witness on terms permitted by law. [However, the] common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.” AR 27-26, Rule 3.4, Comment; see also ABA Standards for Criminal Justice: Prosecution Function 3-3.2(a).
- De minimus “gifts,” such as providing snacks during a long interview session, would not generally fall afoul of this prohibition. However, if the witnesses are cooperators and/or inmates, such small luxuries designed to encourage cooperation could be problematic. Even if such items would not constitute “inducements” under this rule, trial counsel may have to advise defense counsel that the cooperators received special treatment under
Giglio v. United States , 405 U.S. 150 (1972) . See United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) (extreme case where prosecutors allowed cooperating witnesses unlimited and unsupervised telephone privileges, conjugal visits and other special treatment during witness preparation sessions).