Whether a witness to a crime can be compensated for their testimony by a third party, contingent on obtaining an indictment or conviction.

The defendant was convicted of second-degree murder after two witnesses implicated him in a nighttime shooting in New Bedford. The witnesses were compensated by the New Bedford Chamber of Commerce for their testimony: each received $3,000 for grand jury testimony leading to an indictment, and another $2,000 for trial testimony leading to conviction. Payment was conditioned on certification by the district attorney’s office. The witnesses, who were the defendant’s neighbors, were not implicated in the killing.

The defendant argues that New Bedford’s program constitutes payment for favorable testimony of a fact witness, and thus violates a number of rules.  In particular, (1) New Bedford’s program violates the Rules of Professional Conduct 3.4(g), which bars payment to witnesses conditioned on the outcome of a case; (2) plea agreements contingent on conviction violate the test of fundamental fairness, Commonwealth v. Ciampa, 406 Mass. 257, 261 (1989), with other jurisdictions in accord; and (3) G.L. c. 268A, § 3 criminalizes payment for testimony under oath. The defendant therefore requests a new trial, with testimony by the two witnesses excluded.

The New Bedford program, as described by the defendant, presents a straightforward case of payment conditioned on favorable testimony. While the Court is unlikely to go so far as to rule that participation in the program violates the criminal code, the defendant has a strong claim that the testimony against him should be excluded.

The defendant is careful to present a narrow challenge against cash payment for testimony, contingent on conviction. The challenge raises broader issues, however. Should statements be excluded, for example, if payment is conditioned on arrest, but the same witness is later called at trial? Although the Court is unlikely to reach such questions in this case, it may well raise issues regarding a range of community policing programs in the future.