Snitching

Criminal Informant Law, Policy, and Research

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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.

Guest Blogger Professor Eric J. Miller

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My thanks to Alexandra Natapoff for the opportunity to contribute to this blog. Like many folks thinking about the complex range of social attitudes to snitching, I have been deeply influenced by Alexandra’s writing on the subject, and in particular, her article “Snitching: The Institutional and Communal Consequences.” That being said, while I share her focus on the criminal aspects of snitching, I’d also like to throw in some examples from time to time that exhibit the breadth of snitching depictions in our culture. So I’ll begin with a slightly lengthy post to set out my general take on snitching.

Think, for example of the popular AMC series Mad Men, set in a Madison Avenue advertising firm during the 1960s, as an extended meditation on the disvalue of snitching. Each of the central characters has a secret, many of them criminal or quasi-criminal (at the time), and none more so than the hero of the piece, Don Draper, who is a deserter from the Army during the Korean War living under an assumed identity. Yet at pivotal moments throughout the four seasons of Mad Men, other characters have found out Don’s secret and refused to snitch. I don’t think it too much of a stretch to suggest that one of the major attractions of the series is precisely our interest in seeing if someone will snitch on Don. If this is a plausible characterization of Mad Men, then the show advances – and the audience’s response confirms – the value of not-snitching as a major part of our culture.

More strikingly, we tend to think that the folks who refuse to snitch – Don’s ex-wife Betty Francis, Don’s former boss and now partner, Bert Cooper, Don’s colleague Pete Campbell, and so on – are doing the right thing. Why?

Two aspects of snitching (or informing or whistleblowing, to put it in neutral or even positive terms) are brought out by the series: first, snitching undermines trust and second, it can have very severe personal and social consequences.

Here I should issue a quick spoiler alert for those who haven’t got to the latest episode from the current season, “Hands and Knees.” That episode was all about the central issues of snitching: secrets and trust (“loyalty” as discussed on the Wall Street Journal’s Mad Men blog, hosted by Walter Dellinger ). What stood out in the episode was the – at times odd – refusal of friends, colleagues, family, and even enemies (the categories are not mutually exclusive) to snitch on Don.

A central motivation of the characters in that episode was that the consequences of snitching fall not only on Don, but on each of them too. For example, Betty’s new marriage has already hit some bumps, particularly in relation to her husband, Henry Francis’s political ambitions. He may be unable to trust her if he finds out she married him wile knowing Don was a deserter. The consequences are perhaps even greater for the seedy Pete Campbell: if Pete snitches, Don will disappear, destroying the firm and Pete’s fledgling career. Pete swallows the loss of his major client and, during a partner’s meeting, sucks up Roger Sterling’s vitriol to avoid snitching. Such deference makes economic sense: while taking a hit in the short term, Pete clearly hopes Don will bring in more money down the road.

But Pete’s self interest also depends upon Don’s loyalty: Pete trusts that Don will both remain Don Draper, the mercurial creative force that drives the profits, and remain at the firm. For Betty, too, there is a need to maintain trust if life is to continue uninterrupted. The question the Federal Agents ask her regards Don’s loyalty: is he generally someone in which she (and the nation) should place its trust. So long as she can trust him to remain Don, her marriage is secure.

So how does all this relate to police and policing? The point is that snitching – which Alexandra defines as the “very specific law enforcement practice of rewarding informants by forgiving them their crimes” – operates against a social background of trust-based moral values and self-interested calculations of profit, loss, and personal security. Snitching eviscerates trust, and while it may increase the security or profitability of discrete individuals in the course of what Alexandra calls the “information-liability exchange between informants and the government,” it may threaten the security or profitability of the group as a whole.
In the case of Mad Men, the relevant group is Sterling Cooper Draper Pryce (the advertising firm at the heart of the story) along with Betty’s family life. But in the real world, the relevant groups include fragile communities of families and friends, often living in economically and legally equivocal circumstances. We easily empathize with the rich, suave, middle-class, white deserter Don Draper (and are encouraged to do so by the writers); we may not so easily empathize with the poor, working-class, minorities who are often the subjects of diatribes about snitching (and are often encouraged by this in media depictions of criminals and anti-snitching).

Yet anti-snitching may seek to preserve the interests of the group over the interests of the individual – particularly when, as Alexandra points out in her great article, the snitches are not usually the innocent bystanders or victims of crime, but its perpetrators. The police must be trusted to do the right thing and protect the community’s security: if the snitches are themselves perceived as enemies of the community, or the consequences as socially destructive, then anti-snitching makes good moral and practical (prudential) sense. While I am not suggesting that snitching is always morally or prudentially justified, I am endorsing the thought that the picture is not so simple as the media often portrays it.

A rare rebuke to the government

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Today’s New York Times opines about the FBI’s sordid 15-year history of covering up for two of its top informants, James “Whitey” Bulger and Stephen “the Rifleman” Flemmi. The government’s mishandling of these two seasoned criminals has generated numerous criminal cases, law suits, and a scathing 2004 Congressional inquiry entitled “Everything Secret Degenerates: The FBI’s Use of Murderers as Informants.” In this latest episode, last week Judge William Young ordered the U.S. Department of Justice to compensate the families of two Flemmi/Bulger murder victims because of how government lawyers had “bullied and maligned” the families during litigation.