# Subpoenaed as witness; Questions. **URL:** \ **Category:** Factual Questions\ **Created:** [October 3, 2005, 4:39pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600 "2005-10-03T16:39:49Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [October 3, 2005, 4:39pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/1 "2005-10-03T16:39:49Z")
I have been subpoenaed to appear as a witness in the criminal case Commonwealth of Pennsylvania vs. BG (bad guy). I plan to appear, so discussion related to my civic duty would be wasted. Also, I have a lawyer and am not looking for legal advise. I guess this is about intellectual curiousity: 1. Why are witnesses not paid? Jurors are paid (something), why not witnesses for the state? 2. I will likely just miss one day of work, but what if it were more? Say several individuals were all being prosecuted and I got called to testify in each trial. Would I have to choose between paying my mortgage and being jailed for contempt? 3. I have been subpoenaed in an “open and shut” animal cruelty case. There is overwhelming evidence against the defendant. However, even if found guilty he will likely be fined a small amount (I speak from prior experience). If I approached the defendant, and offered him $150 to change his plea to guilty, would I be breaking the law? From my POV, I will be out over twice that amount by taking a day off of work and the fine is only going to be around three times that amount. The idea kind of reaks to me, but what law would I be breaking? 4. If #3 is _not_ illegal, could I have my attorney make the offer, or would he be offended to be asked? He is a friend and I would not want to offend him. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [October 3, 2005, 5:03pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/2 "2005-10-03T17:03:17Z")
IANAL, so I’ll only answer part of Question 4. I don’t think any lawyer would get offended by a question like that: it’s the sort of question that lawyers are paid to answer, and it in no way attacks the integrity of the lawyer. If you wanted to soften it, you could pose it as a casual off-the-cuff hypothetical question, rather than as a serious one: “Wouldn’t it be nice if could pay BG to plead guilty, so I don’t have to take time off work?” ---
**Author:** ![mks57](https://avatars.discourse-cdn.com/v4/letter/m/b9bd4f/32.png) [@mks57](https://boards.straightdope.com/u/mks57)\ **Post date:** [October 3, 2005, 6:23pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/3 "2005-10-03T18:23:16Z")
> [@vetbridge](#): > > 1. Why are witnesses not paid? Jurors are paid (something), why not witnesses for the state? I suspect it is a matter of state law. Many years ago, I was the victim and prosecution witness in a criminal case. I was paid a small fee ($20 per day) for the time I spent talking to the prosecutor and appearing in court. ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [October 3, 2005, 6:24pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/4 "2005-10-03T18:24:48Z")
> [@vetbridge](#): > > 1. Why are witnesses not paid? Jurors are paid (something), why not witnesses for the state? Hmm. A fine question, since expert witnesses are often paid (handsomely) for their time. ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [October 3, 2005, 6:37pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/5 "2005-10-03T18:37:10Z")
> [@vetbridge](#): > > 1. If I approached the defendant, and offered him $150 to change his plea to guilty, would I be breaking the law? . IANAL but I think it would be against the law, and a fairly serious offense. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [October 3, 2005, 6:37pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/6 "2005-10-03T18:37:17Z")
> [@vetbridge](#): > > 1. I have been subpoenaed in an “open and shut” animal cruelty case. There is overwhelming evidence against the defendant. However, even if found guilty he will likely be fined a small amount (I speak from prior experience). If I approached the defendant, and offered him $150 to change his plea to guilty, would I be breaking the law? From my POV, I will be out over twice that amount by taking a day off of work and the fine is only going to be around three times that amount. The idea kind of reaks to me, but what law would I be breaking? I’ve heard of witness tampering, but _tampering witnesses_? :eek: That’s a new slice of cake. IANAL, but I believe you’d be suborning perjury in this case by cajoling/persuading/bribing the defendant into changing their presumably honestly-held opinion of culpability. I doubt the court would look too highly on a witness bribing the defendant. Stranger ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [October 3, 2005, 6:51pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/7 "2005-10-03T18:51:34Z")
> [@Stranger On A Train](#): > > IANAL, but I believe you’d be suborning perjury in this case by cajoling/persuading/bribing the defendant into changing their presumably honestly-held opinion of culpability. IANAL either, but from everything I’ve read, getting a defendant to change their plea would not be perjury. A plea of not guilty does not imply that the defendant honestly believes they are not culpable, otherwise a defendant found guilty woould automatically be charged with perjury due to their not guilty plea. I think. Nothing funnier than two non-lawyers discussing the law.😉 ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [October 3, 2005, 6:58pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/8 "2005-10-03T18:58:11Z")
> [@vetbridge](#): > > 1. I have been subpoenaed in an “open and shut” animal cruelty case. There is overwhelming evidence against the defendant. However, even if found guilty he will likely be fined a small amount (I speak from prior experience). If I approached the defendant, and offered him $150 to change his plea to guilty, would I be breaking the law? From my POV, I will be out over twice that amount by taking a day off of work and the fine is only going to be around three times that amount. The idea kind of reaks to me, but what law would I be breaking? Isn’t this Attempting to Pervert the Course of Justice? ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [October 3, 2005, 7:07pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/9 "2005-10-03T19:07:24Z")
> [@Quartz](#): > > Isn’t this Attempting to Pervert the Course of Justice? Is this an Oz thing? I am in the US, specifically Pennsylvania. The only kangaroos I’ve seen have been in zoos. 😉 ---
**Author:** ![Finagle](https://avatars.discourse-cdn.com/v4/letter/f/b19c9b/32.png) [@Finagle](https://boards.straightdope.com/u/Finagle)\ **Post date:** [October 3, 2005, 7:17pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/10 "2005-10-03T19:17:36Z")
> [@vetbridge](#): > > 1. Why are witnesses not paid? Jurors are paid (something), why not witnesses for the state? Well, think about it – aside from such airy concepts as it being your civic duty and you should be glad to do it, paying a witness opens up the possibility that the witness is testifying \* because \* he/she is getting paid. Granted, an honorarium such as what they give jurors isn’t likely to cause too many people to change their story, but there’re always a few people who will think “They’re paying me to tell my story, so I should tell the one they want to hear.” In the case of an expert witness, I would think it’s a different story, because clearly you wouldn’t have the expert up there in the first place unless they supported your case. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 3, 2005, 7:18pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/11 "2005-10-03T19:18:58Z")
> [@vetbridge](#): > > 1. Why are witnesses not paid? Jurors are paid (something), why not witnesses for the state? > [@](#): > > (b) Compensation.–Every witness, except a salaried police officer attending a coroner’s inquest during working hours, shall be paid at the rate of $5 per day during the necessary period of attendance. A witness under the act of March 30, 1937 (P.L.115, No.40), known as “The First Class City Permanent Registration Act” shall be paid at the rate of $20 per day. [http://members.aol.com/StatutesP8/42.Cp.59A.html](http://members.aol.com/StatutesP8/42.Cp.59A.html) > [@](#): > > (a) Compensation.–A person summoned to serve as a juror shall receive compensation at the rate of $9 a day for the first three days in any calendar year he shall be required to report for service and $25 a day for each day thereafter in such calendar year that such person is required to report. In addition, persons so summoned shall be paid a travel allowance at the rate of 17 cents per mile circular except that no travel allowance shall be paid in the first judicial district. [http://members.aol.com/StatutesP6/42PA4561.html](http://members.aol.com/StatutesP6/42PA4561.html) They are. They just get an even smaller pittance. ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [October 3, 2005, 7:33pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/12 "2005-10-03T19:33:57Z")
> [@Gfactor](#): > > [http://members.aol.com/StatutesP8/42.Cp.59A.html](http://members.aol.com/StatutesP8/42.Cp.59A.html) > [http://members.aol.com/StatutesP6/42PA4561.html](http://members.aol.com/StatutesP6/42PA4561.html) > > They are. They just get an even smaller pittance. Wow. Thanks for the statutes. I have testified a couple of times before, both civil and criminal. I don’t remember ever getting a cent. Then again, a check for five bucks would slide right under the radar. ☹ ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 3, 2005, 7:45pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/13 "2005-10-03T19:45:08Z")
> [@vetbridge](#): > > Wow. Thanks for the statutes. I have testified a couple of times before, both civil and criminal. I don’t remember ever getting a cent. Then again, a check for five bucks would slide right under the radar. ☹ Many civil lawyers seem unaware of statutory witness fees. I’ve seen dozens of subpoenas served in civil cases here in Michigan without a check. And Michigan is like PA in this respect: > [@](#): > > (h) Payment at time of service of subpoena.–At the time a witness is served with a subpoena for any civil matter the witness shall, upon demand, be paid the witness fee for one day and travel expense provided in this section. In civil cases the witness must get a check with the subpoena. Many Michigan litigators are also unaware of this statute: > [@](#): > > 75.13a Expert witness; compensation. > > Sec. 13a. > > If a person attends a court as a witness in a felony, misdemeanor, or ordinance violation case upon the request of the prosecuting attorney or defendant by virtue of a recognizance or subpoena for that purpose, whether at the trial of the case or other proceeding in the case, to testify as an expert witness, the person may be paid as compensation for the service a sum in excess of the ordinary witness fees provided by law. The sum to be awarded shall be determined by the judge before whom the witness appears. which says that expert witnesses may be paid only an amount approved by the judge. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 3, 2005, 8:06pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/14 "2005-10-03T20:06:34Z")
> [@vetbridge](#): > > 1. I will likely just miss one day of work, but what if it were more? Say several individuals were all being prosecuted and I got called to testify in each trial. Would I have to choose between paying my mortgage and being jailed for contempt? Essentially, yes. Under some circumstances one can get a subpoena quashed. But if your testimony is necessary to a criminal case (even an open and shut one), it’s pretty unlikely. > [@](#): > > 1. I have been subpoenaed in an “open and shut” animal cruelty case. There is overwhelming evidence against the defendant. However, even if found guilty he will likely be fined a small amount (I speak from prior experience). If I approached the defendant, and offered him $150 to change his plea to guilty, would I be breaking the law? From my POV, I will be out over twice that amount by taking a day off of work and the fine is only going to be around three times that amount. The idea kind of reaks to me, but what law would I be breaking? I am not your lawyer. You are not my client. This is not legal advice. I am unaware of any specific law that you would be breaking in doing that. I am not advising you to do it, however, because I am not a Pennsylvania attorney. The consequences of simply discussing such a transaction would probably be insignificant, as far as I can tell. > [@](#): > > 1. If #3 is _not_ illegal, could I have my attorney make the offer, or would he be offended to be asked? He is a friend and I would not want to offend him. While it might or might not be ok for you to do it, your lawyer can’t, at least without the defendant’s lawyer’s consent: Rule 4.2. Communication with Persons Represented by Counsel. > [@](#): > > In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. [http://members.aol.com/StatutesP4/Conduct.4.html](http://members.aol.com/StatutesP4/Conduct.4.html) ---
**Author:** ![aamco](https://avatars.discourse-cdn.com/v4/letter/a/f19dbf/32.png) [@aamco](https://boards.straightdope.com/u/aamco)\ **Post date:** [October 3, 2005, 9:02pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/15 "2005-10-03T21:02:09Z")
> [@Quartz](#): > > Isn’t this Attempting to Pervert the Course of Justice? I don’t see why it would be. People frequently plead guilty (or no contest) if the cost of the trial & punishment is inconsequential compared to the cost of lost opportunity. ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [October 3, 2005, 11:27pm UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/16 "2005-10-03T23:27:13Z")
> [@Gfactor](#): > > This is not legal advice. I understand.😉 Thank you. My OP has been the topic of conversation here at my office all day. Blame Perry Mason, Susan Dey, and Jimmy Smits. 😃 ---
**Author:** ![ryobserver](https://avatars.discourse-cdn.com/v4/letter/r/b2d939/32.png) [@ryobserver](https://boards.straightdope.com/u/ryobserver)\ **Post date:** [October 4, 2005, 12:09am UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/17 "2005-10-04T00:09:48Z")
Re Question 3: If you tried that, and BG told his lawyer you’d tried to pay him, his lawyer would surely bring that up when you testified. (I sure would if I were a lawyer.) “You’re just out to get my client, aren’t you? You even tried to bribe him to plead guilty, didn’t you?” Whatever followed, it wouldn’t be too pleasant for you. “Perverting the course of justice” is the way it’s put in English (and apparently, Australian) law. The equivalent expression in the US is usually “obstruction of justice” (what Martha Stewart went up for) or “hindering prosecution” (what Tonya Harding pled guilty to) or “subornation of perjury” or “witness tampering”. I can’t offhand think of anyone prosecuted for soliciting a guilty plea, but then usually people–lay people, that is–tamper with justice in an effort to escape punishment, not get someone to submit to it. People who tamper with justice to get convictions are generally cops or prosecutors, and can often avoid being punished if they’re not too blatant about it. As for paying witnesses to testify–the fees paid to expert witnesses are regularly thrown in their faces by lawyers trying to discredit their testimony (“And how much are you being paid for your so-called findings?”). I’m sure if regular witnesses recieved more than a derisory token payment, they’d suffer for it on the stand too. Only lawyers are allowed to make money in court without having their honesty impugned. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 4, 2005, 1:48am UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/18 "2005-10-04T01:48:51Z")
> [@vetbridge](#): > > 1. I have been subpoenaed in an “open and shut” animal cruelty case. There is overwhelming evidence against the defendant. However, even if found guilty he will likely be fined a small amount (I speak from prior experience). If I approached the defendant, and offered him $150 to change his plea to guilty, would I be breaking the law? From my POV, I will be out over twice that amount by taking a day off of work and the fine is only going to be around three times that amount. The idea kind of reaks to me, but what law would I be breaking? > > 2. If #3 is _not_ illegal, could I have my attorney make the offer, or would he be offended to be asked? He is a friend and I would not want to offend him. I am not your lawyer, you are not my client. You have your own lawyer already, and your question is at best hypothetical. What follows is not legal advice, but merely an attempt to educate about the law. And, may I say, good question. I have been puzzling about it for several hours. First, I agree, as always, with **Gfactor** , and thank him for the citations. The witness fee question has been answered adequately so far, and I’m more interested in the payment to the defendant. Intuitively, it feels wrong to think you could do that. As you note, the idea reeks. First, if you were to offer money to the defendant to change his plea, that would create a contract: I’ll pay you $150 if you plead guilty. What happens if you don’t pay him? He’d have to sue you, and I doubt that a court would enforce such a contract. It seems like it should be against public policy, and courts don’t enforce contracts that are illegal or void as against public policy. But why do I think it’s against public policy? Well, because it seems wrong that you can pay a guy to stand up in court to say one thing versus another. Of course, we pay witnesses. Percipient witnesses – or witnesses who are testifying about facts they observed or know from their own experience – get paid the mere pittance **Gfactor** points out. In some states, there is an exception for certain professionals (mainly medical doctors – sorry), and those witnesses get paid a higher rate. We also pay expert witnesses, but that’s disclosed and the expert is cross-examined about the payment. [So why would it be wrong to pay the defendant?](http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000201----000-.html) > [@18 U.S.C. section 201(b)(3)](#): > > Whoever— > (3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom; > shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States. So the question is whether the defendant, in pleading guilty and affirming to the court that he is entering the guilty plea voluntarily, is a “witness” pursuant to the federal anti-bribery statute. I don’t know; I don’t think he takes an oath when he pleads guilty, but I think there’s at least an argument to be made there. As for asking your lawyer, you absolutely can ask your lawyer anything. That’s why we have privilege: so that there aren’t repercussions for a person who wants to know how he can legally navigate his world. An attorney can’t advise you to take an illegal action, but he can certainly explain to you why your proposed course of conduct is illegal. But as **Gfactor** points out, a lawyer cannot talk to a represented party without the party’s lawyer present. Anyway, great question. Ultimately, I think the federal statute likely wouldn’t apply, but for what it’s worth, I couldn’t find any cases in which someone paid a defendant to plead guilty. ---
**Author:** ![yBeayf](https://avatars.discourse-cdn.com/v4/letter/y/e274bd/32.png) [@yBeayf](https://boards.straightdope.com/u/yBeayf)\ **Post date:** [October 4, 2005, 2:26am UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/19 "2005-10-04T02:26:48Z")
> [@](#): > > Ultimately, I think the federal statute likely wouldn’t apply, but for what it’s worth, I couldn’t find any cases in which someone paid a defendant to plead guilty. Hmmm… there’s never been a case where a low-ranking member of an organization was paid to plead guilty to some charge to avoid inconvenient revelations coming out during the trial? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 4, 2005, 3:01am UTC](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600/20 "2005-10-04T03:01:31Z")
> [@yBeayf](#): > > Hmmm… there’s never been a case where a low-ranking member of an organization was paid to plead guilty to some charge to avoid inconvenient revelations coming out during the trial? Of course there are such cases. Those cases are, in my opinion, inapposite. The fact of the bribe is addressed through conspiracy and RICO charges – in other words, the government alleges that the payment is made to further the conspiracy or to permit the illegal organization to continue operating. I don’t think that **vetbridge** could be considered the defendant’s co-conspirator. I was unable to find a case where an essentially disinterested third party paid someone to plead guilty to a crime. [Next page](https://boards.straightdope.com/t/subpoenaed-as-witness-questions/324600.md?page=2)