Asymmetries and Incentives in Plea Bargaining and Evidence Production

33 Pages Posted: 14 Mar 2012 Last revised: 26 Dec 2012

Saul Levmore

University of Chicago Law School

Ariel Porat

Tel Aviv University; University of Chicago - Law School

Date Written: March 14, 2012

Abstract

Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear where physical evidence is at issue, though most such evidence can be compelled and need not be purchased. Another asymmetry concerns advance payment for likely witnesses, as opposed to monetary inducements once the content of the required testimony is known. One goal of this Article is to understand the various asymmetries — monetary/nonmonetary, prosecution/defense, ex ante/ex post, and testimonial/physical — and another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, with a relaxation of the rule barring payment.

Suggested Citation

Levmore, Saul and Porat, Ariel, Asymmetries and Incentives in Plea Bargaining and Evidence Production (March 14, 2012). Yale Law Journal, Vol. 122, 2012; University of Chicago Institute for Law & Economics Olin Research Paper No. 592; U of Chicago, Public Law Working Paper No. 379. Available at SSRN: https://ssrn.com/abstract=2022488

Saul Levmore

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9590 (Phone)
773-702-0730 (Fax)

Ariel Porat (Contact Author)

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
972-3-6408283 (Phone)
972-3-6407260 (Fax)

HOME PAGE: http://www.law.tau.ac.il/Heb/?CategoryID=357&ArticleID=388

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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