Recently President Trump said that “flipping” a witness to incriminate a prosecutorial target “almost ought to be outlawed,” saying that individuals who flip are often untruthful.
This statement raises the important question of whether it should be illegal to offer a witness a valuable consideration for providing testimony, as prosecutors allegedly did with Lt. Gen. Michael T. Flynn.
Interestingly, it is already illegal for a lawyer to do that — if the lawyer is a defense attorney. If any defense attorney offers a witness an inducement to testify favorably to his client — even if his testimony is 100% truthful — that lawyer will be disbarred, prosecuted and imprisoned. But it is perfectly legal, indeed widely regarded as commendable, for prosecutors to offer major inducements in order to get witnesses to testify against their targets. These inducements include money, freedom from imprisonment and even life itself.
There are cases in which courts have allowed prosecutors to pay witness’s contingent fees — that is, bonuses — if their testimony results in convictions. There are cases in which prosecutors have threatened to seek the death penalty unless a witness flips against a co-defendant. There are cases in which prosecutors threaten to prosecute wives, children, parents and siblings of witnesses unless they flip, to offer 10- or 20-year reductions in sentences in exchange for favorable testimony.