United States v. Adalberto Cervantes-Pacheco, Jerry Wayne Nelson and William E. Nelson

ALVIN B. RUBIN, Circuit Judge,

concurring:

The employment of a witness for a fee contingent upon victory for the party in whose favor he testifies is a violation of both the Model Rules of Professional Conduct 1 and the Code of Professional Responsibility.2 Yet, because a person interested in the outcome of a case is a competent witness, experts employed on such a contingent-fee basis have been permitted to testify.3 No court, so far as I have been able to find, now excludes contingent-fee testimony. The prosecuting attorney is therefore permitted to adduce evidence in a criminal case despite the fact that it is gained by a breach of ethical standards. As the majority opinion points out, the government may also offer witnesses plea bargains for either a reduced sentence or immunity in exchange for their testimony and thus provide an incentive greater even than a contingent fee. If the government may do so, the defendant presumably may also employ experts and other witnesses to testify for a fee contingent on his acquittal. While this balances opportunity equally, it patently permits perversion of the trial process, and I am therefore troubled by the possible results of our decision. Because, however, both the Supreme Court decision in Hoffa v. United States4 and the decisions of every other circuit appear to sanction the use of such testimony, I concur in the result.

. Model Rules of Professional Conduct Rule 3.4 (1983).

. Model Code of Professional Responsibility DR 7-109 (1980).

. Petition of Shore, 93 Misc.2d 933, 403 N.Y.S.2d 990, 993 (1978); New England Telephone & Telegraph Company v. Board of Assessors of Boston, 392 Mass. 865, 468 N.E.2d 263, 268 (1984).

. 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).