27 Pages Posted: 7 May 2011
Date Written: May 4, 2011
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: 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