Snitching

Criminal Informant Law, Policy, and Research

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The developing science of informant cognition

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Behavioral psychologists have been studying the informant phenomenon, especially the thorny question of why jurors believe unreliable informants even when they know that the informants have strong incentives to fabricate evidence.  Some of those studies can be found here in the Resources & Scholarship section.

A group of researchers recently published this study finding that information from an informant can affect other witnesses in a case. Specifically, the study found that eyewitnesses who identified suspects in a line-up actually changed their identifications after learning that a jailhouse informant had implicated a different suspect.  Here is the abstract:

“Prior research has shown that primary confession evidence can alter eyewitnesses’ identifications and self-reported confidence. The present study investigated whether secondary confession evidence from a jailhouse informant could have the same effect. Participants (N = 368) watched a video of an armed robbery and made an identification decision from a photo lineup. Except for those in the no-feedback conditions, all participants then read that certain lineup members either confessed to the crime, denied involvement, or were implicated by a jailhouse informant. Jailhouse informant testimony implicating the identified lineup member led participants to have significantly higher confidence in their identification. In contrast, jailhouse informant testimony that implicated a lineup member other than the identified led participants to have significantly lower confidence in their initial identification, and 80% of these witnesses changed their identification. These results indicate that jailhouse informant testimony can influence eyewitnesses’ confidence and their identification decisions.”

Preston M. Mote & Jeffrey S. Neuschatz & Brian H. Bornstein & Stacy A. Wetmore & Kylie N. Key, Secondary Confessions as Post-identification Feedback: How Jailhouse Informant Testimony Can Alter Eyewitnesses’ Identification Decisions, Journal of Police and Criminal Psychology (2018).

We already know that informant testimony can arise to bolster weak cases, providing corroboration for faulty forensic evidence or uncertain eyewitness identifications.  This new study suggests that in addition to bolstering, informant testimony can actually alter other witnesses’ testimony. 

ICE marks 17-year-old informant for deportation and death

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ProPublica and New York Magazine published this story about Henry, a teenager in Brentwood, Long Island, who agreed to inform on his MS-13 gang to the FBI.  The federal government then decided to deport him back to El Salvador, leaving him unprotected against the gang:  A Betrayal:  The teenager told police all about his gang, MS-13. In return, he was slated for deportation and marked for death.  From the story:

“Under normal circumstances, Henry’s choice would have been his salvation. By working with the police, he could have escaped the gang and started fresh. But not in the dawning of the Trump era, when every immigrant has become a target and local police in towns like Brentwood have become willing agents in a nationwide campaign of detention and deportation.”

For other instances where the government has failed to protect immigrant informants, see these posts.

More broadly, the government often pressures or incentivizes immigrants to give information which is then used to deport them.  This law review article surveys the law, and argues that such policies are counterproductive: Amanda Frost, Can the Government Deport Immigrants Using Information it Encouraged Them to Provide?  Administrative Law Review, Vol. 2, No. 97, 2017. Here is the abstract:

“This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any administration, even one that seeks to drastically increase deportations. The federal government has always balanced immigration enforcement against other goals and values, such as deterring crime, protecting wages and working conditions, collecting taxes, and preventing U.S. citizen children from being separated from their parents. Deporting immigrants based on information provided in the service of these greater goals would elevate immigration enforcement over all other federal policies. Furthermore, doing so would almost immediately render these laws a dead letter, since no rational unauthorized immigrant would apply for visas or pay taxes if doing so were tantamount to self-deportation. Accordingly, any increase in removals from the use of such data is sure to be fleeting, while the damage done to immigrants’—and perhaps all citizens’—trust in the government will be permanent.”

Experiments on the impact of inducements

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Scholars at the University of Arizona Law School have published a paper entitled “Incentives, Lies and Disclosure,” 20 U. Pa. J. Con L. 33 (2018).  They conduct a number of behavioral experiments and conclude that incentivized witnesses like jailhouse informants are more likely to lie, and that even when potential jurors are told about the incentives, they still believe the witness.  Here is the abstract:  

Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony. 

Due process requires, and legal doctrine assumes, that when such inducements are disclosed to the jury, they will discount the witness testimony accordingly. However, juries’ success in doing so is an empirical question. We conducted three randomized experiments with 1,000 human subjects in roles of witnesses and jurors deciding vignettes based on real cases. We find that incentives have large effects on witnesses, allowing prosecutors to routinely procure favorable testimony regardless of its truth. Yet, disclosure has no detectable effects on either witnesses or jurors. 

We discuss two potential reforms. First, courts could borrow from the practice with expert witnesses and use the current rules of evidence to conduct Daubert-like pretrial screening of incentivized witnesses for reliability. We frame the appropriate counterfactual question about whether the incentives would cause a witness to give the same testimony even if it were false. Second, we present the novel suggestion that prosecutors could decide whether to offer benefits to a witness based on whether she will testify to material information, but without knowing whether the information is favorable to the Government. These mechanisms may preserve the value of incentives to produce information, while minimizing false testimony.