In SUPPORT of Montana Senate Bill 156, regarding Incentivized Witnesses sponsored by Sen. Roger Webb of Billings, and Senate Bill 172, regarding Post-Conviction Relief Based on New Evidence sponsored by Sen. Margie McDonald of BillingsJ

Senate Judiciary Committee

Chairman Regier and members of the committee,

My name is Steven Greenhut. I am the Western Region Director for
the R Street Institute, which is a Washington, D.C.-based nonprofit,
nonpartisan, public policy research organization. I handle our efforts in the
Western states, including Montana. Our mission is to engage in policy research
and outreach to promote free markets and limited, effective government in many
areas, including the criminal-justice system, which is why SB 156 and SB 172
are of special interest to us.

The goal of criminal-justice reform is to ensure that the justice
system performs its job of truly dispensing justice. In this context, there are
few things worse than wrongfully convicting a person of crime. As Benjamin Franklin wrote, “That it is
better 100 guilty Persons should escape than that one innocent person should
suffer, is a maxim that has been long and generally approved.” The government
has immense powers to deprive individuals of their liberty, which is why our
nation’s founders created a system filled with protections for the accused.

philosophy explains why prosecutors are legally required to pursue justice — and
not just rack up convictions. Everyone knows that wrongful convictions cause
immense suffering for individuals and their families. They also deprive crime
victims of justice, given that there is no solace if the wrong person
languishes in prison while the guilty party roams free. Furthermore,
incarcerating the wrong person wastes taxpayer dollars. Wrongful convictions
also undermine public safety, given that the actual perpetrator is still on the

These are obvious points.
But the criminal-justice system is not always quick to correct its mistakes or
to admit that it ever makes them. State legislatures need to pass targeted
reforms that protect the innocent but do not unnecessarily hobble the ability
of district attorneys to convict the guilty. These two bills strike a perfect

SB 156 provides additional
and long-needed protections against false testimony. Currently, prosecutors
need only provide those accused of crimes with five days’ notice before trial. The
bill extends the required notice time to give the accused enough leeway to
prepare an adequate defense and raise witness reliability issues to judges and
jurors. The bill also clarifies the kind of information that the state must
provide to the accused, including the disclosure of any materials related to an
incentivized witness’ credibility.

Incentivized witnesses
receive myriad benefits from their testimony, including reduced sentences,
dismissal of charges against them and various special privileges. This gives
these witnesses a strong incentive to provide inaccurate information. Their
testimony, however, can be extremely influential and often leads to improper guilty
verdicts. The Innocence Project notes that false testimony from incentivized
witnesses played a role in four of the 14 exonerations that have taken place in
Montana. This situation is in desperate need of reform, and SB 156 represents a
solid step in the right direction.

SB 172 is equally
important. Until 2015, wrongfully convicted Montanans could bring forth new non-DNA evidence of their
innocence as long as there was a “reasonable probability of non-conviction.” A 2015 state
Supreme Court ruling tossed out that sensible standard, which is used in a
majority of states. Today, the wrongfully convicted can only get a new hearing
if they provide new non-DNA
evidence showing that they could not have committed the crime.

Prosecutors and government
agencies are not perfect. They make mistakes. Sometimes they may even be guilty
of misconduct. That is the human condition. There must be a way to right these
wrongs when compelling evidence of them becomes known. It undermines the spirit
of the law — and the ideas set forth by our founders — to force a person to
remain in prison when substantive new evidence suggests they might be innocent.
This includes a confession from the actual perpetrator as well as scientific
advancements that debunk the evidence used to secure the conviction.

Both of these bills will
promote true justice and will in no way hamper law enforcement’s ability to
prosecute the guilty. For those reasons, we strongly support these measures.

you for your time and consideration. Please do not
hesitate to contact me if I can ever be of assistance.

Steven Greenhut

Western Region Director

R Street Institute

[email protected]

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