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My understanding is that there are two types of witness, Expert and Material. These have similarities and differences. One similarity is that both can be compelled to answer questions in court in front of a judge, and can and almost always do answer questions prior to trial during the investigation though have the right to refuse to answer questions at this stage. One difference is that experts would usually be paid for this pre-trial information while material witness would not.

While there are obvious societal/cultural reasons for this, if we were all Homo economicus one might conclude that there is no economic justification for this difference. It could be reasoned that all materiel witnesses, at least if they do not have a direct financial stake in the outcome of the particular case, should charge the interested parties whatever they feel the market can bear for the information they have. They could also perhaps charge more for exclusivity of that information prior to trial. The fact that this is not commonplace the world over would seem to indicate there is a good reason why not, perhaps a legal one.

What would be the legal issues involved with a material witness requesting payment for the information they possess, and/or the interested parties paying them, be that law enforcement, prosecution or defence?

As far as jurisdiction, as this occurs nowhere one might assume that the answer is the same everywhere. If not the best answer may compare the different approaches to this problem.

Edit wrt some of the answers.

To demonstrate what I am talking about, and how it differs from what some are talking about take the example given below:

1999 trial of Paul Gadd (aka Gary Glitter) in which his defence lawyers cast doubt on evidence because the press had promised payments to witnesses, he was acquitted, the judge opined that payments by the News of the World to a witness and an offer of £25,000 on conviction were "highly reprehensible" and "not illegal but it is to be greatly deprecated"

Would it have been legal for that witness to, instead of trying to get £25k from the NotW had said to the police "My evidence will be key to the trial, I will give it to you now for $25k or I will wait until compelled by a judge"? In the instance the police refused, would it be legal to make the same offer to the defence or prosecution lawyers? In the instance the defence accepted, would it be legal to offer to NOT tell the police the same information prior to be compelled to for further payment? I am assuming that having this information prior to trial has a market value far above £25k.

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Expert witness are paid by the party that hired them and they can charge whatever was agreed. See How are expert witnesses motivated?

Witnesses of fact are compelled to testify by subpoena, that is, they have no choice. They may claim expenses to cover their out of pocket expenses but they do not get paid for their time because being a witness is a civic duty.

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Paying as the Court

The difference is simple: Experts are employees of the court, Witnesses have a duty to participate. Both get paid for the court in different ways:

Experts are typically court-mandated and not chosen by parties. The Court retains them and pays them for their service based on hourly rates affixed from a specific schedule based on their expertise and niche for all work before and during the trial, and the bill ends up in the bill the losing party has to pay the court in the end.

Witnesses get witness compensation (Ger: Zeugengeld, lit: Witness Money/Diet) for appearing at trial under §71 StPO. This covers lost wages (with a cap of 25 €/hour) and reasonable expenses (such as travel costs). Usually, they are required to appear at the police to make their statements under the risk of punishment for not appearing.

Paying as a...

...3rd Party employer wages not related to being a witness

Generally, the employer is not obligated to pay a witness for the days they miss work to serve as a witness, they do get the Zeugengeld for their testimony in a criminal case instead. You are not considered to be on the clock and the employer has to give you the time to attend a court hearing.

If you are suing or sued and thus a party to the lawsuit, lost wages for appearing in court are usually part of the costs levied against the losing party, and Zeugengeld is not available for parties. In those cases where the employee has the right to be compensated by the losing side, the employer is not obligated to pay the employee for the time they missed at work. But if the employee loses and was ordered to appear, the employer is required to pay them their wages based on §616 BGB, unless the contract stipulates to the contrary.

If you sue your employer, things get complicated even more...

...party or 3rd party for appearing/not appearing

The attempt to pay a witness creates the appearance that it might be a wrong testimonial, which is illegal. Such a wrong testimonial would be violating the demand to tell the truth in § 138 ZPO (Civil Process Regulations) and the whole chapter 6 (§§48-71 StPO) (Criminal Process Regulations)

An inducement for a wrong testimonial is illegal under §159 StGB & if successful under §160 StGB. Any way of inducing a witness to assist in preventing a just and fair trial can also be Obstruction of Justice under § 258 StGB. This can be construed widely, including "I pay you for not appearing as a witness". It also is an act of Fraud to the Process, illegal under § 263 StGB.

The Criminal Process Code makes any other pressure on witnesses illegal with § 136a StPO.

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It doesn't seem unreasonable to imagine that if it were legal to pay material witnesses we would have many cases of:

  • material witnesses deciding against coming forward or testifying because of insufficient reward (complainants and defendants in poverty would be particularly vulnerable to this)
  • people exaggerating, lying or otherwise falsely testifying (perjury) in return for money or some other benefit
  • sufficient suspicion that any of the above occurred (even if in fact it hadn't) to cast doubt on a particular case (risking a mistrial) or the entire civil or criminal justice system

In some jurisdictions persuading people to commit perjury is a specific criminal offence called inducement or 'subornation of perjury'. In other jurisdictions such behaviour might come under the umbrella of a more general offence such as 'perverting the course of justice', 'witness tampering' or such.

Section 1(1) Perjury Act 1911:

If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury ...

Section 7(1) Perjury Act 1911:

Every person who aids, abets, counsels, procures, or suborns another person to commit an offence against this Act shall be liable to be proceeded against, indicted, tried and punished as if he were a principal offender

Solicitors and barristers are regulated professions and must act in accordance with their codes of conduct.

Solicitors:

2.3 You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.

Barristers:

C9.6 you must not make, or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case;


In the past several decades there have been a number of demands to create a duty for newspapers to report payments made to witnesses (or people claiming to be witnesses) or to outright ban such payments. This is because of some notorious examples. I mention this in support of my speculation at the beginning of my answer.

In March 2002 the Lord Chancellor's Department produced a consultation paper on "A proposed criminal offence of making, or agreeing to make, or receiving, payments to witnesses or potential witnesses in criminal proceedings."

This paper sets out for consultation the form of the legislation needed to implement the Government's commitment to introduce legislation to prevent risks of interference with the administration of justice from payments, or agreements to make payments, to witnesses or potential witnesses in criminal proceedings.

The consultation is aimed in particular at the media, especially at newspaper reporters and editors. It is also aimed at the judiciary, the legal professions, the police and the general public in England and Wales. ...

This Government is committed to ensuring that the media maintains its reporting freedoms. It is also committed to ensuring that the accused has a fair trial and that the administration of justice is not undermined. Unfortunately, in recent years activities of some of the media in relation to a number of high profile criminal cases has prompted serious debate, in Parliament and elsewhere, about the effect those activities may have had on the outcome of the proceedings.

The most pernicious practice is the payment of witnesses, or potential witnesses, for their stories. These payments are most dangerous when they are made conditional on the accused being found guilty. It matters not whether the story is to be published after the trial has ended or that the witnesses have told the truth. Once the jury is aware that payments are in hand, the witnesses and their evidence lose credibility and justice is undermined. [my emphasis]

The risk arises not only from approaches made by the media but also when witnesses themselves actively seek payment for their stories. Witnesses and potential witnesses therefore need to know how the law applies to the agreements they may make for their stories. ...

On such case was the trial of Ian Brady and Myra Hindley (the Moors murderers) in April 1966. During the trial, the judge and defence barristers repeatedly questioned David Smith, brother-in-law to Hindley and the chief prosecution witness, about the nature of his arrangement with the News of the World. Among other things, he had been receiving weekly payments from the newspaper and had agreed to be paid £1,000 (some £15,000 in today's money) if Brady and Hindley were convicted.

The judge said there had seemed "to be a gross interference with the course of justice" although eventually decided that Smith's testimony had not been substantially altered by this arrangement. Attorney-General Sir Elwyn Jones promised an investigation, questions were raised in the Houses of Parliament and the Press Council (a voluntary press organisation formed under threat of statutory regulation) published its first Declaration of Principle (not law), which banned paying witnesses in advance of trials.

Parliament has been generally loathe to regulate the press and has tended to prefer the press self-regulate under threat of being regulated by law. In 2002 the government shelved its plan to make it a criminal offence for witnesses to benefit from 'chequebook journalism'.

Other examples:

  • 1979 trial of Jeremy Thorpe - witness Peter Bessell's testimony was undermined when his financial arrangements with the Sunday Telegraph came to light (serialisation rights of his memoirs, doubling of his initial £25,000 if Thorpe were convicted)
  • 1981 trial of serial murderer Peter Sutcliffe - concern that his wife and others connected to the Sutcliffes were benefiting from their association with his crimes
  • 1995 trial of serial murderer Rose West (wife of serial murderer Fred West) - witness Janet Leach had a stroke in the witness box after falsely claiming she had not sold her story to the press (for which she had in fact agreed to £100,000 - nearly £200,000 in today's money)
    • it emerged that at least 19 witnesses had received money from or signed contracts with the media, ranging from £750 to £30,000, including members of the West family
    • Rose West was convicted, she appealed partly on the basis that press payments to key prosecution witnesses precluded a fair trial and rendered her conviction unsafe, Court of Appeal ruled against her
  • 1999 trial of Paul Gadd (aka Gary Glitter) in which his defence lawyers cast doubt on evidence because the press had promised payments to witnesses, he was acquitted, the judge opined that payments by the News of the World to a witness and an offer of £25,000 on conviction were "highly reprehensible" and "not illegal but it is to be greatly deprecated"
  • 2002 trial of a teacher acquitted of indecent assault of under-age pupils, during which the press offered teenagers money for their stories

The (edited) question asks:

Would it have been legal for that witness to, instead of trying to get £25k from the NotW had said to the police "My evidence will be key to the trial, I will give it to you now for $25k or I will wait until compelled by a judge"? In the instance the police refused, would it be legal to make the same offer to the defence or prosecution lawyers?

I haven't found a law against a person offering testimony in return for money. However, as I wrote above, solicitors and barristers (including members of the Crown Prosecution Service) are not allowed to offer or pay money for testimony.

A person could be ordered to testify - disobeying a 'witness summons' without a reasonable excuse is a 'contempt of court'.


A comment says:

While material witnesses aren't paid, they do often receive immunity, so they can testify against someone else without having to incriminate themselves. Doesn't that count as "some other benefit"?

Yes, in some circumstances prosecutors have powers to secure intelligence or evidence from offenders to assist the investigation or prosecution of an indictable or either way offence.

My understanding of the question is that it imagines a jurisdiction in which offering testimony for reward or vice versa is an entirely normal behaviour regardless of the circumstances.

The Crown Prosecution Service guidance for England and Wales says that "It is only in the most exceptional cases that it will it be appropriate to offer full immunity [from prosecution]."

A person might be offered immunity from prosecution for a given offence on the basis of their confession but not immunity for the same offence on the basis of other evidence that came to light.

The available numbers support the claim that use of the above four powers is rare - see CPS website, Information on agreements made under Sections 71 to 74 of SOCPA 2005 and Sentencing Act 2020. For example, for the period 1 May 2022 to 30 April 2023:

  • Immunity from prosecution: 1
  • Restricted use undertakings: 0
  • Reduction in sentence for assistance to prosecution: 6
  • Review of sentence following subsequent agreement for assistance by offender: 1
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  • While material witnesses aren't paid, they do often receive immunity, so they can testify against someone else without having to incriminate themselves. Doesn't that count as "some other benefit"?
    – Barmar
    Commented May 7 at 21:15
  • @Barmar I suppose it does count as a benefit, and it didn't occur to me when I wrote my answer. However, apparently it is rare in the UK. Full or total immunity (very rare): a person immune from prosecution for a given offence. Partial immunity (rare): a person immune from prosecution on the basis of their confession to a given offence but they could be prosecuted on the basis of other evidence of that offence. Sentence reductions are another benefit.
    – Lag
    Commented May 8 at 8:49
  • "My understanding of the question is that it imagines a jurisdiction in which offering testimony for reward or vice versa is an entirely normal behaviour". I do not postulate that it be entirely normal behaviour. If you saw my edit, I was postulating that the sort of person who will bring a trial down by taking money from the NotW may be willing to use their right of silence for monetary gain. I was not imagining they under any threat of prosecution, that would be a "higher order need".
    – User65535
    Commented May 8 at 11:22
  • @Lag Total immunity is probably rare, but it's not uncommon when prosecuting conspiracies to give immunity for the specific crime to underlings so that they can testify against the ring-leader. I think there are examples in the Trump trials.
    – Barmar
    Commented May 8 at 15:43
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It is common in my profession for employees to be paid normal wages by their employer, while working for the employer by being a witness-of-fact in court on a matter related to the employer.

It is also common in my profession for employees, at the end of employment, to sign contracts (for consideration) agreeing to be a witness-of-fact (as contractors, for compensation), on request by the ex-employer.

AFAIK, there is no legal reason why an ex-employer should pay an ex-employee to be a material witness, but, AFAIK, there is no law preventing it.

Certainly being an employed contractor or employee would be relevant to the credibility of a witness, but not in such a way as to absolutely prevent the testimony of witnesses regarding their employer.

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An expert witness is usually someone who analyzes something a lay person in their field may not be able to based on training and experience. Their testimony is normally limited to that one area, whereas other witnesses may testify about anything relevent they saw.

For example, a mechanic may normally be payed for the same type of information they testify about. Not everyone has the credentials needed to analyze every part of a car. The mechanic would typically only testify about analyzing a vehicle and is not required to have seen the crime.

In contrast, anyone could have seen a robbery or other crime occur. No training is needed for a witness to say they saw the defendant break into their neighbor's house. This person is required to have seen the crime or relevant things.

It is essentially the same as paying a mechanic to fix your car and not just anyone. You can have anyone tell you they saw the mechanic come in at 8 :30 though. You pay the mechanic because he is trained while you do not pay someone for saying they saw him at 8 : 30.

If you payed everyone to appear and testify, people might lie or exaggerate. Even if the witness did not lie, people's perception could change because the witness was payed.

It is considered to be part of being a good citizen to testify.

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  • Could the lying be avoided if they weren't informed which side was paying for them to be a witness?
    – Barmar
    Commented May 7 at 21:16
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    Witnesses know who called them. I think that has the same effect sometimes. @Barmar The fact that a witness was payed could still potentially change how the testimony was viewed.
    – Mimedfp
    Commented May 7 at 21:42
  • I know they do know, but one could imagine a different process where they're kept in the dark, precisely to avoid this problem.
    – Barmar
    Commented May 7 at 21:46
  • How would you get their if someone did not ask you to come?
    – Mimedfp
    Commented May 7 at 21:49
  • An officer of the court would act on behalf of them.
    – Barmar
    Commented May 7 at 21:52

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