[Part 3 of a series on: The Common Causes of Wrongful Convictions]
The legally sanitized term is “incentivized informants”. They are more often simply called “snitches”, a term of well-deserved contempt.
In a full 15% of proven wrongful convictions, the case presented against the innocent at trial included statements by such incentivized witnesses – often cellmates, sometimes co-defendants, or other motivated persons.
The problem is nothing new. In fact, the very first documented case of wrongful conviction in the U.S. included “snitch” testimony. Almost 200 years ago, in 1819, Jesse and Stephen Boorn were suspects in the killing of their brother-in-law Russell Colvin. Jesse Boorn was put in a cell with a convicted forger, Silas Merrill, who then testified that during their time together Jesse confessed to the murder. As a result, Merrill was given his freedom, and the Boorn brothers were sentenced to death. The execution was not carried out, however, because the “murder victim”, Russell Colvin, turned up very much alive in New Jersey.
If anything has changed in the last two centuries it is only that the proliferation of such bogus testimony by incentivized informants has reached epidemic proportions.
No-one should be under the illusion that the average jailhouse snitch is a “noble whistleblower”, only interested in seeing that justice is properly served. There is now a mountain of evidence that many informants lie under oath. In some cases, the motivation may be money, in many more it is the reduction of prison time or other favors; false testimony is often a last resort by a desperate inmate.
There are cases where informants come forward voluntarily, seeking a deal, but the system has been further corrupted because of the times that law enforcement officials actively seek out the assistance of snitches. When they do so it is all too common for them to (either deliberately or unwittingly) lead the informant by providing information needed to give detailed false testimony.
The snitch system has become so ubiquitous that, in the world of career criminals, it has resulted in slogans like: “Don’t go to the pen, send a friend.” While that may sound funny, there is absolutely nothing humorous about the results of such activity.
So, informant testimony is inherently suspect. Yet in some cases, where there is no DNA evidence, incentivized testimony is the only testimony used to wrongly convict innocent people.
As a result of all these facts, some legal authorities have called for the complete elimination of snitch testimony from our courtrooms. This proposal is unlikely to be implemented, however, because incentivized informants are still viewed in many quarters as an invaluable tool of law enforcement. At the very least, the following reforms are desperately needed to regulate the use of informants and stop the systemic abuses:
1. No Hidden Deals
The prosecution must be required to disclose any arrangements with an incentivized witness. This is so obviously basic to a defendant’s 6th Amendment right to a fair trial that it should not even have to be argued for, and yet there are States that still do not have such measures in law.
Even when such a requirement is in place, however, it is only a first step because informants who have not been directly promised anything may still commit perjury in the hope of some future benefit.
2. Electronic Recording of Informant Interviews
This measure would pose no unreasonable burden on law enforcement, and would protect the integrity of the process by ensuring (1) that no undisclosed promises are made, either directly or implied, and (2) that officers do not provide leading information.
It has been further suggested that potential snitches be wired to record incriminating statements made by suspects, so that the testimony does not rely solely on their word.
3. Pre-trial Determination of Reliability
Before an informant can take the stand in front of a jury, the court should be required to determine the reliability of their testimony by considering factors such as:
- The relationship of the witness to the defendant
- Full details of the place and time when incriminating evidence was provided
- The informant’s criminal record
- Whether the testimony is adequately detailed and corroborated by known, but undisclosed, facts of the case
4. Instructions to Juries
Judges must have the authority to caution juries, in both general and specific terms, about the unreliability of informant testimony. They should seek to educate jurors about the inherent and historic problems.