The New Jersey Attorney General issued Directive 2020-11 which requires all state prosecutors to seek supervisory approval before using jailhouse informants. That approval process requires, among other things, the collection of comprehensive information regarding the proposed informant witness. Supervisors must satisfy themselves that prosecutors have met their discovery obligations, and that “there is independent, credible evidence corroborating the informant’s testimony.”
In 2019, Matthew Klaus died of a drug overdose while working as a confidential informant for Minnesota police. He was a recovering heroin addict who relapsed while working for the police; he was instructed to buy from the dealer who eventually sold him a fatal dose. His parents, John and Denise Klaus, are advocating for a new law that would protect recovering addicts like Matthew from being used as drug informants. See the Star Tribune story here: After son’s fatal overdose, Oronoco couple champion law reforming police use of informants. The proposed legislation is here.
In an early test of Illinois’s new reliability hearing requirement, a judge held that three men would be permitted to testify at trial after vetting them in a pre-trial informant reliability hearing. All three alleged that the defendant had confessed to them while incarcerated. The judge based his ruling in part on his finding that “no deal, no promises, no inducements or benefits were made by the state.”
The Connecticut Supreme Court has long required a special jury instruction for jailhouse informants. As the Court has written, “a trial court must issue a special credibility instruction when a jailhouse informant testifies because such informants have a powerful incentive, fueled by self-interest, to implicate falsely the accused, and, consequently, their testimony is inevitably suspect.’’ Last month in State v. Jones, the Court extended that requirement to an informant who alleged that the defendant confessed to him years before, when neither of them were in jail. The informant happened to be incarcerated when he approached police with the information. The state argued that the special instruction should only be applicable when an informant alleges a jailhouse confession, but the Court concluded that the risks of fabrication “do not depend on the location where the alleged false confession occurs,” since the informant had the same motive to lie, and because “false confessions are easy to fabricate, but difficult to subject to meaningful cross-examination.”
Remember Jack Abramoff, the corrupt lobbyist who defrauded Indian tribes of millions and used the money to bribe members of Congress and White House officials? In 2008 he was sentenced to four years of incarceration for multiple offenses, decades less than he might have received, in exchange for his cooperation. Now Abramoff is headed back to prison for . . . corrupt lobbying. Abramoff joins a long line of repeat offender informants who commit serious crimes, cooperate in exchange for leniency, and then continue committing those very same offenses. It is one of the costs of running the criminal system as a marketplace in which guilt and information can be so easily and routinely traded: we send the message that informants can earn impunity, and that they can work off even the most serious crimes if they are useful enough to the government. I worried about the Abramoff case back in 2009 here. As I wrote back then, “this is the perennial dilemma with snitches: it is very hard to know whether we are actually getting more security and justice by letting them off the hook, or whether we too easily forgive serious wrongdoing in the name of cooperation.”