Adam M. Gershowitz
94 Geo. Wash. L. Rev. 259
Prosecutors and the police regularly pay informants and other witnesses in criminal cases. These payments can be in the form of rewards, relocation expenses, crime victims funds, and even simple cash. Although witness payments are legal, prosecutors are supposed to disclose them under the Brady doctrine because they are favorable evidence that the defense could use to impeach the witness. Yet prosecutors often fail to disclose witness payments because of communication failures with the police, poor training, excessive caseloads, and occasional ethical lapses.
This Article examines dozens of hidden witness payments that prosecutors failed to disclose. In nearly eighty percent of these cases, courts rejected Brady challenges on the ground that the evidence was not significant enough to change the outcome. This Article catalogues the often unpersuasive reasons that courts give for finding witness payments immaterial, such as the witness only receiving a small amount of money or the defense cross-examining the witness about an unrelated issue.
In minimizing the importance of witness payments, courts ignore decades of psychological research about the reciprocity effect—the idea that a person who receives a benefit feels obligated to reciprocate and behave favorably toward the person who gave the benefit. Considering the robust literature on the reciprocity effect, this Article proposes an automatic prejudice rule that eliminates Brady’s materiality prong when the government paid a witness and failed to disclose the payment. Eliminating the materiality prong would bring the Brady doctrine in line with the ineffective assistance of counsel doctrine, which has long recognized an automatic prejudice exception for situations involving a conflict of interest.
