Judging Freedom - Why Can the Feds Bribe a Witness_

Episode Date: February 10, 2022

Here's the difference between an Expert Witness and a Fact Witness.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello there everyone, Judge Andrew Napolitano here with Judging Freedom with another pop-up. Today on this pop-up and the two that will follow it, I'm going to answer some of the better questions that we've received in the past couple of days. Today is Thursday, February 10, 2022. It's about 2.40 in the afternoon on the east coast of the United States. And here's a question from Luke Gilkerson. my ranting and raving the other day about the government cutting deals with people who are defendants in criminal cases so that they'll get on the witness stand and testify against their former colleagues. Here's Luke's question. It's an excellent one.

Can you comment more on this idea of compensating a witness for his or her testimony? I see why it is bribery when the government does it. Why isn't it bribery when a law firm pays for someone's expert testimony, such as a doctor or a forensic expert? Who might have standing to challenge this bribery? witnesses, and we have expert witnesses. A fact witness recounts to the jury what he saw, heard, tasted, touched, smelled, what he perceived with his senses. I heard a gunshot. I looked around, and I saw the defendant running from the sound of the gunshot, an example of testimony of a fact witness. The other type of witness is an expert witness. An expert witness explains a field, a complex field to the jury that the jury otherwise wouldn't know and is allowed to give an opinion on that field. So an expert witness, for example, in a medical malpractice case, the surgeon left a scalpel in the plaintiff's belly. Well, you probably don't even need an expert

witness there because everybody knows that that's wrong and that that's against standard medical practice. How about the surgeon cut too deeply when entering the belly and injured other organs? You needed an expert to say what is the standard for cutting deeply. So we allow experts to be paid to educate the jury and to give an opinion to the jury. The problem comes in when fact witnesses are paid to tailor their testimony to agree with whoever's paying them. And the only person or entity that can get away with that is the government. The case that I was discussing when you sent us this terrific question, Luke, was the Michigan Wolverines, a militia group charged with a plot to kidnap

Governor Gretchen Whitmer of Michigan. Now, a lot of us believe that there was never a real plot, that the whole thing was concocted by the FBI, that there were more undercover FBI agents or cooperating witnesses working for the FBI in the group than there were actual plotters, that the plot was concocted, fomented, created, and paid for by the FBI. That's another issue. The issue that we address is one of the defendants who told a judge that he was pleading guilty also told the judge in the guilty plea what it is he will say at the time of trial against the other defendants who are not pleading guilty. Now, who do you think wrote what it is he told the judge? The federal government. The same

government that prosecuted him bribed him by saying, we'll let you plead guilty to a lesser charge. And if you say what we want to hear, we will ask the judge to give you no jail time or very little jail time. That's outrageous and it's wrong, but it goes on all the time. Can defense counsel bring this to the jury's attention? Of course. And can defense counsel challenge the credibility of the witness on the grounds that the witness is being bribed, bought and paid for? Of course. But it is wrong that the government can even do it. My favorite case, I wrote a book, I've written nine books on the Constitution, but my first book was called Constitutional Chaos, What Happens When the Government Breaks Its Own Laws? And one of my favorite cases from that book is one where a federal judge, a federal judge is the defendant, and he's charged with bribery, and the government

bribed witnesses to testify against him. The government committed, the prosecutors committed the very crime they were trying to judge for. The judge was convicted, and the conviction was overturned. So sometimes these things do have a happy ending, but most of the time, juries believe government witnesses, even when they're bought and paid for. That has to stop. Judge Napolitano, judging freedom.