Snitching

Criminal Informant Law, Policy, and Research

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Tribal Law and Order Act of 2010

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My student, Sam Dickhut, is writing a great paper on the Tribal Law and Order Act of 2010 that incidentally raises an interesting issue about snitching. His paper, and the Act itself, responds to a recent Amnesty International study finding that a disproportionate number of rapes (two-and-a-half times the non-native population) are perpetuated against the American Indian and Alaskan Native communities of the United States. Almost one third of the rapes are committed by non-Native American visitors on tribal lands, and these stranger rapes are disproportionately likely to be violent.

A central contributing factor, Sam argues, is the case of Oliphant v Suquamish Indian Tribe, 435 U.S. 190, 193 (1978), which holds that tribal courts do not have jurisdiction over non-Indians. Accordingly, rapes must be investigated and prosecuted by the federal government. And the government faces two, snitching-related obstacles.

The first obstacle is the difficulty of obtaining information from the white communities abutting tribal lands, given variety of racial and cultural stereotypes that are applied to the rape victims. Not only are such communities unwilling to snitch on the perpetrators of sexual crimes, they dominate the jury pools, rendering it difficult to prosecute such cases to a conviction.

The second obstacle is the historically fraught relationship between the Native population and the government. Lacking specific training to deal with the cultural norms and practices that they will encounter on tribal lands, and residing outside the community, investigators and prosecutors often lack the sort of relationship with tribal officers or members, and so cannot generate the information necessary to prosecute such cases.

The Tribal Law and Order Act proposes to solve the problem of rape prosecutions, in part by increasing the law enforcement competence of the currently underfunded and under-trained tribal officers, as well as granting tribal courts additional sentencing powers. But treating the problem as one of tribal enforcement rather than federal enforcement perpetuates the idea that this is a tribal problem, rather than a federal one.

Instead, the problem of snitching should be addressed head on as the Indian Law Commission, which was created by the Act, conducts hearings over the next three years in order to develop proposals for further legislation. Alexandra Natapoff’s work on snitching, especially when read against the background of David Harris’s “Good Cops,” suggests the problem is not communities’ refusal to cooperate with the police, but the police’s lack of interest or training in dealing with specific communities in a consistently engaged and thoroughgoing manner. The Tribal Law and Order Act provides an amazing opportunity for the federal government, through the FBI and the U.S. Attorney’s office, to right current injustices as well as historical wrongs by engaging in the sort of community outreach to develop the sort of partnerships productive of understanding and trust in the target communities that stop snitching advocates consistently recommend. That work is often hard, and faces difficult cultural obstacles. But it produces the sort of policing that is the mark of the good cop, and in this case could have a major social and cultural impact.

Snitching Study

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Dr. Rick Frei, a professor at the Community College of Philadelphia, recently conducted a study (“The Snitching Study“) of over 1,500 community college students to determine whether there was widespread agreement among the students as to the definition of “snitching,” and what factors would increase or decrease the likelihood that a student would “snitch” on someone they knew to have committed a crime. Professor Frei also testified before the United States Senate’s Subcommittee on Crime and Drugs as to the result of his survey.

The study confirmed that most students (82.6%) regarded “ratting on someone else to get out of a crime” as snitching; whereas less than a third (28.6%) regarded “picking a suspect out of a police lineup” as snitching. While that last figure still seems higher than optimal, it is perhaps explained by another of the survey’s findings, that “half the sample said they did not trust the police,” even though 60% of respondents claimed to know a police officer personally.

Two factors in particular stood out for me. First was that “[t]he more the situation required the person to take the initiative … the more likely it was to be viewed as snitching.” (Dr. Frei’s Testimony before the Subcommittee). Least likely to be viewed as snitching (16%) was ‘[a]nswering questions from the police if you are at the scene of the crime.” Here, the student’s definition of snitching seemed to track the ACLU’s distinction between acting as an informant and acting as a witness. That may have important ramifications for the manner in which the police engage in gathering evidence from people with knowledge of criminal activity.

The second striking factor from the study was that “[n]early half of all students said that they would be more likely to cooperate if there was someone besides the police to which they could report crimes.” This factor appears to bolster the idea that the students surveyed tend to distrust the police, or perhaps what the police would do with the information — many students were less likely to snitch if the crime was non-violent. One obvious response would be to set up tipster hotlines that are not directly identified with the police, and which individuals reporting crimes could use to report incidents. Another way to approach the same problem may be to make such tipster hotlines anonymous. Anonymity impacts the most important factor inhibiting the students from acting as informants: almost thirty percent of students said they would be less likely to snitch if it would affect their reputation in the community. There are some worrying practical and legal problems with hotlines, however, and in particular anonymous tips, that I shall consider in a later post.

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

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Two witnesses in Wayne Miranda’s murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusetts Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in them or help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568. From the Court’s opinion:

We recognize that, to prove the crime charged, prosecutors often need to procure the cooperation and truthful information or testimony of reluctant witnesses. The interests of justice, however, are not well served when a witness’s reward is contingent on the conviction of a defendant, rather than the provision of truthful information or testimony.

While the Massachusetts Supreme Court should be lauded for its ethical concern, its decision is somewhat ironic. Prosecutors routinely provide far greater benefits to criminal informant witnesses, in the form of liberty and leniency, than a few thousand dollars. In many jurisdictions, these rewards can be contigent on conviction. And even when the rewards are not expressly contingent on conviction, every attorney and informant knows that a witness in a successful conviction is more likely to get rewarded.
This is why Professor George Harris [author of Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)], and I have recommended leveling the playing field by creating defense informants, i.e. rewards for informants who come forward with information that might help the defense rather than the prosecution. As it currently stands, an offender with information helpful to the defense cannot expect any benefits–only the government can give those. This lopsided arrangement is, as the Massachusetts Supreme Court pointed out, not in the interests of accuracy or justice.

Texas requires corroboration for informant witnesses

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Perhaps as a result of these sorts of debacles, Infamous fake drug scandal in Dallas, Of Experts and Snitches, Texas has passed some good corroboration legislation restricting the use of drug informants and jailhouse snitches. Last year, it passed this law requiring corroboration for jailhouse snitches:

A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code. Crim. Pro. art. 38-075

Article 38-141 similarly requires corroboration before a drug informant can testify. These are steps in the right direction, although they are only partial solutions to the lying snitch problem. The key to informant unreliability is not whether the informant is involved in drugs or in jail, but whether he expects a benefit and therefore has a motivation to lie. Nebraska takes the right approach in this regard by defining “informant” to include “any criminal suspect, whether or not he is detained or incarcerated, who received a deal, promise, inducement or benefit.” Neb. Rev. Stat. 29-1929. In defining informant broadly, the Nebraska legislature reasoned that “there is a compelling state interest in providing safeguards against the admission of testimony the reliability of which may be or has been compromised through improper inducements.”

Welcome to Professor Eric Miller

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I’m so pleased to introduce guest blogger Professor Eric Miller, from St. Louis University School of Law. His scholarship focuses on policing, race, and drug enforcement–key issues in the informant policy world. Readers may be particularly interested in this piece: Role-Based Policing: Restraining Police Conduct “Outside the Legitimate Investigative Sphere,” 94 Cal. L. Rev. 617 (2006), in which Professor Miller thinks about the many informal ways that police interact with suspects and citizens. He’ll be with us for October.