An Economic Analysis of Fact Witness Payment

27 Pages Posted: 7 May 2011  

Date Written: May 4, 2011

Abstract

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.

Keywords: fact witnesses, expert witnesses, testimony

JEL Classification: K10, K19, K40, K41

Suggested Citation

Kontorovich, Eugene and Friedman, Ezra, An Economic Analysis of Fact Witness Payment (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. Available at SSRN: https://ssrn.com/abstract=1832706

Eugene Kontorovich (Contact Author)

Northwestern University Law School ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
(212) 503-0429 (Phone)

Ezra Friedman

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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