LSAT 153, Section 1, RC Passage 3, Bartered Testimony

RC Passage 3 Explanation

PASSAGE TEXT: Criminal courts frequently rely on accomplice witnesses (witnesses who testify regarding the role …

Paragraph Summaries

1. Criminal courts often use accomplice witnesses and jailhouse informants. These witnesses may testify about conversations with the accused, including supposed confessions.
2. Cooperating witnesses often receive reduced sentences or other benefits for testifying. That gives them a strong reason to lie, especially since lying informants are rarely prosecuted.
3. Courts know bartered testimony can be unreliable, but they think cross-examination and jury scrutiny are enough safeguards. Those safeguards can fail when prosecutors only imply a benefit, since the jury may never learn about the deal.
4. Research shows that jurors give too much weight to confession evidence, even when incentives are involved. If jurors underestimate how incentives affect defendants, they may also underestimate how incentives affect cooperating witnesses.
5. Jurors may focus too much on a person’s supposed character or guilt and too little on outside pressures. They may treat a confession as proof of guilt instead of asking what pressure or reward produced it.

Analysis

First there’s the fabrication incentive. Then the safeguards fail in certain situations. Then even when juries do know about incentives, psychology suggests they don’t properly discount them. Each paragraph is a further nail in the coffin of the courts’ position.

A big move comes in para 4. Up to that point, the author’s been talking about cooperating witnesses.

Then suddenly there’s a discussion of psychological research about confession testimony (confessions from defendants themselves, not from cooperating witnesses).

It’s used to draw an analogy: if jurors can’t properly account for an incentive’s effect on a defendant’s behavior, they probably can’t properly account for an incentive’s effect on a cooperating witness’s behavior either. That inferential step is easy to miss, and question 20 tests it directly.

Also, the explicit vs. implied distinction in para 3 is subtle but worth noting. When a deal is explicit, the jury hears about it and can factor it in. When a prosecutor merely implies that testimony will be rewarded, there’s nothing to disclose and so the standard safeguards simply don’t apply. This is what question 18 is after.

The attribution error concept in the final paragraph is an important explanation. People look at a confession and think: only a guilty person would confess. They’re attributing the behavior to internal character rather than to the external situation (i.e. the incentive). This is why knowing about the incentive doesn’t fully protect against its effect. Jurors think they’re accounting for it, but the research suggests they aren’t.