LIKE PUTTING LIPSTICK ON A PIG: WHY THE HISTORY OF CRIME CONTROL SHOULD COMPEL THE PROHIBITION OF INCENTIVIZED WITNESS TESTIMONY UNDER FUNDAMENTAL FAIRNESS PRINCIPLES.

• Author: Linton, Caleb

INTRODUCTION 393 I. A PROBLEM OF THE STATE'S OWN MAKING 398 II. A HISTORY OF MISUNDERSTANDING 407 III. CAN POLICE AND PROSECUTORS POLICE AND PROSECUTE THEMSELVES? 412 A. Existing Disclosure Requirements 413 B. Pre-Plea Disclosure 416 C. Other Safeguard-like Proposals 417 D. Selective Abolition 418 IV. FUNDAMENTAL FAIRNESS: A HISTORY OF MISUNDERSTANDING REDUX 419 A. Due Process Jurisprudence: Fundamental Fairness 419 B. The Court Shifts to Selective Incorporation 420 C. Implicit in the Concept of Ordered Liberty 420 D. A Return to Fairness Doctrine? 422 E. A Confused Court 423 F. Where Does One Find Balance in the Constitution? 425 CONCLUSION: FUNDAMENTAL FAIRNESS MEANS BAN IT ALL 426 INTRODUCTION

Consider a scenario: A is convicted of felony murder. (1) At trial, the prosecution presents no physical evidence tying A to the crime. The State attempts to tie the murder weapon to A through the alleged written statement of a man, E, who testified at trial that he was suffering from severe drug addiction at the time of his interview. Police allege E told them he saw A looking for the murder weapon--weeks after the crime--in the neighborhood where they both lived. E recants most of the statement at trial, testifying that he does not remember telling police anything relating to A and that he would remember if he did. The State called only two eyewitnesses to the crime, (2) B and C, each of whom received significant incentives. Prosecutors relocated B and he also received leniency for a drug charge. B subsequently perjured himself when asked whether he had received benefits in exchange for his testimony. C, previously arrested for falsifying statements to police, received a $20,000 reward payment just one week after A's conviction in connection with taking "the stand in court and successfully [giving] detailed accounts of the victim's death." (3) The police homicide chief commissioned the payment as part of a crime reward fund established by that city's mayor years earlier. (4) The prosecution did not disclose this payment to defense counsel until almost seven years later, after a new district attorney took office. (5) The only other evidence the prosecution presented against A was a coerced "confession" that A maintained the police fabricated entirely, promising A--after a forty-five-hour interrogation in which he received no food or water and slept only briefly in a fluorescent-lit room, all while handcuffed to a metal table--that as soon as he signed each page of his "release papers," he could return to his child. While the police covered each page of the document so that A could not see what he was signing, A complied and was sent home for four months before his subsequent arrest and conviction for murder.

This scenario may sound fanciful or beyond plausibility. However, A remains in prison at the time of this writing, over nine years after his conviction. Though the problems in this case were legion, the glue that bound them together and sealed his fate was undoubtedly the introduction of incentivized testimony at trial. Absent that incentivized testimony, the State's case rested on a nearly two-day interrogation that almost certainly would be excluded but for the corroboration of two incentivized State witnesses willing to inculpate the defendant.

Incentivized testimony presents a unique exception to the typical due process considerations that arise in criminal prosecutions. (6) For well over a century, police and prosecutors have routinely benefited from the ability to use incentives (7) to secure favorable testimony for the State (8) while defendants are categorically banned from offering any inducements for the same. (9) The supposed justification for this asymmetry appears to be rooted in the public policy concern that witnesses may be otherwise unwilling to testify due to a number of factors including: (1) fear of retribution by those against whom they testify; (10) (2) mistrust of police;" (3) the concomitant community stigma attached to "snitching;" (12) as well as (4) sufficient cost-benefit motivation to remain silent, at least in cases of organized crime, conspiracies, and corruption by government officials and "white-collar criminals." (13) Yet, each of these factors is a result of historical police practices rooted in prejudice, the origins of law enforcement as a mechanism to protect private property, (14) and inconsistent law enforcement protection of particular communities. (15) By offering incentives to testify for otherwise unwilling witnesses, the State skirts the underlying issues by employing a temporary "fix" that only serves to deepen community mistrust.

This deepening of mistrust occurs because history and practice, as well as empirical research in behavioral and social sciences, have proven that incentives have the propensity to induce even the most trustworthy citizens to fabricate testimony. (16) Moreover, the State is willing to accept such testimony almost without question to secure convictions. (17) Particularly strikingly, many prosecutors continue to insist on the reliability of specific testimony even after exonerations have proven it false. (18) Incentivized witnesses are "the leading cause of wrongful convictions in [United States] capital cases." (19) The age-old maxim uttered by Blackstone, upon which our criminal legal system allegedly rests, that "it is better that ten guilty persons escape than that one innocent suffer" (20) rings hollow in the face of such a finding.

While many have proposed various reforms or solutions to address the due process violations resulting from incentivized testimony, none offer sufficient solutions. Each stops short of proposing a complete ban on all incentivized testimony, regardless of the form of the incentive, be it money, relocation, leniency or favorable treatment for a "jailhouse snitch," or something else. (21) This Comment argues that we have reached the point at which asymmetries have rendered complete exclusion necessary. The Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution demand the prohibition of incentivized testimony in the name of fundamental fairness to the defendant. This concept should concern only fairness to the accused and should not consider the desires and purported needs of the State.

Part I of this Comment sets forth a brief and incomplete history of policing in the United States and its origins' consequences on citizens' faith in law enforcement in the over-policed communities most affected by centuries of police racism and community prejudice. It also notes that recent empirical studies reveal the willingness of individuals, given sufficient incentives, to corroborate the State's narrative even in the face of convincing evidence impugning that narrative. Part II discusses the history of the admissibility of incentivized testimony at trial, a tactic explicitly authorized for use by the State yet prohibited for the defense. The insufficiencies of currently proposed remedies are exposed in Part III. Part IV explains the history of procedural due process jurisprudence dealing with fundamental fairness concerns and argues that the Supreme Court's jurisprudence has departed not only from the original intent of the Constitution's drafters but also from any rational interpretation of what fundamental fairness could mean. The Comment concludes by demonstrating that a proper interpretation of fundamental fairness precludes the use of all incentivized testimony and proposing instead that the State be permitted to provide incentives only to individuals who can provide information leading to evidence that will corroborate the State's case at trial without testifying themselves. (22)

1. A PROBLEM OF THE STATE'S OWN MAKING

   It is easy to take for granted the powerful role of the modern police force as the principal law enforcement mechanism in the United States. Yet the current policing paradigm is a relatively recent development in the common law tradition. (23) Modern policing structures arose primarily out of two distinct-yet-overlapping enforcement apparatuses from the antebellum era: the "watch" system in the North (community volunteers generally supervised by "constables" who performed a variety of bureaucratic functions), and the "Slave Patrol" in the South. (24) Neither modality's proliferation nor the organized forces that are their progeny grew out of a particularized response to increasing crime; both emerged as responses to "disorder" as perceived by "the mercantile interests" who supported later bureaucratic policing institutions through taxes and political influence. (25)

   In the North, those "mercantile interests" were "commercial elites" who wanted to transfer the costs of protecting their private property onto the State through mechanisms of social control. (26) In the South, slave patrols functioned to (1) "chase down, apprehend, and return" enslaved humans to their enslavers; (2) terrorize enslaved individuals to deter revolts; and (3) maintain discipline on plantations. (27) In this sense, patrols in the South functioned similarly to "watches" in the North: Both prophylactically protected against the loss of their respective region's valuable "capital." This formulation contrasted with earlier systems of law enforcement which responded only reactionarily to individual criminal acts. (28) The emergence of public policing can be most easily recognized as a "capitalist invention[] to legitimate and tighten the hold of the ruling class over the working and 'redundant' classes." (29)

   For their part, early northern police forces protected the institution of slavery in multiple ways. (30) It is no cruel irony that Wall Street served as the home to New York City's government-sanctioned slave market from 1711 to 1762 and continued to serve as the site for trading human capital until at least 1792. (31) Not only was the defense wall that gave the street its name built by...