Journal Article

An Economic Analysis of Fact Witness Payment

Ezra Friedman and Eugene Kontorovich

in Journal of Legal Analysis

Published on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School with the support of the Considine Family Foundation

Volume 3, issue 1, pages 139-164
Published in print January 2011 | ISSN: 2161-7201
Published online January 2011 | e-ISSN: 1946-5319 | DOI: http://dx.doi.org/10.1093/jla/3.1.139
An Economic Analysis of Fact Witness Payment

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In this paper we discuss the disparate treatment of perceptual (“fact”) witnesses and expert witnesses in the legal system. We highlight the distinction between the perceptual act of witnessing and the act of testifying, and argue that although there might be good reasons to regulate payments to fact witnesses, the customary prohibition on paying them for their services is not justified by reference to economic theory. We propose considering a court mediated system for compensating fact witnesses so as to encourage witnessing of legally important events. We construct a simple model of witness incentives, and simulate the effects of several possible payment mechanisms. Although it is possible that any system that offers a financial incentive will induce some unreliable witness testimony, we argue that the current system also provides incentives for biased testimony, so it is not clear that a payment system would lower the quality of witness testimony.

Journal Article.  0 words. 

Subjects: Jurisprudence and Philosophy of Law

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