An Economic Analysis of Fact Witness Payment
Northwestern University Law School
Northwestern University - Pritzker School of Law
May 4, 2011
The Journal of Legal Analysis, Vol. 3, p. 139, 2011
Northwestern Public Law Research Paper No. 11-45
Northwestern Law & Econ Research Paper No. 11-13
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.
Number of Pages in PDF File: 27
Keywords: fact witnesses, expert witnesses, testimony
JEL Classification: K10, K19, K40, K41
Date posted: May 7, 2011
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