Snitching

Criminal Informant Law, Policy, and Research

Blog

Snitches bolster weak cases

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The most egregious cases of informant unreliability occur where an entire case turns on the testimony of a single compensated snitch. The dangers of wrongful conviction in this scenario are so obvious that numerous states have or are considering corroboration requirements. But informant testimony can produce wrongful convictions in another way, and that is by making weak cases look stronger than they are. For example, Florida Today ran a story last week (updated link) on the probable innocence of Gary Bennett. Bennett was convicted based on a now-discredited dog sniff expert and the testimony of a jailhouse snitch. Similarly, in the high profile case of Cameron Todd Willingham, the Texas man was convicted and executed for arson based on a combination of poor forensic science and the testimony of a jailhouse snitch who later recanted. See previous post.

Such cases are not accidents. Jailhouse snitches are infamous for fabricating information about homicide and other high-profile cases, and offering the information to law enforcement without any solicitations or promises on the part of the government. In other words, the very existence of the case generates the bad evidence because of the general expectation in the offender population that such information will eventually be rewarded. This snitch testimony, however, makes the original case look stronger than it really is. This problem cannot be solved by corroboration requirements, since the informant’s information is automatically “corroborated” by the pre-existing weak evidence. Yet another reason to restrict the use of jailhouse informant testimony.

Attorney General Holder memo on prosecutorial charging decisions

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Thanks to Sentencing Law and Policy for making Attorney General Eric Holder’s new charging policy memo available here. The blog discusses reactions to Holder’s new guidelines, which are described as providing more flexibility to prosecutors not to argue for mandatory minimum sentences. Of note for this blog’s purposes, Holder’s memo reiterates DOJ’s practice of considering a defendant’s cooperation during the initial charging decision. As the memo states: “In all cases, the charges should fairly represent the defendant’s criminal conduct, and due consideration should be given to the defendant’s substantial assistance in an investigation or prosecution.” As I’ve argued elsewhere, this practice of charge reduction for cooperation is central to the pervasiveness and secrecy of the snitching process: a cooperating suspect will be charged differently, or perhaps not at all, in ways that may leave no paper trail. The U.S. Sentencing Commission keeps track of cooperation departures at sentencing, but charging decisions take place long before a defendant ever comes before a judge to be sentenced.

One consequence of this practice is that cooperation has become a large source of sentencing disparity, the very problem the Sentencing Guidelines were designed to alleviate. For example, an article in the June edition of Justice Quarterly concludes that substantial assistance downward departures are a significant source of inter-judge disparity: “the sentencing discounts that similarly situated defendants get for providing substantial assistance vary upon the judge handling the case,” making substantial assistance departure decisions “a wellspring of sentencing disparity.” Amy Anderson & Cassia Spohn, Lawlessness in the Federal Sentencing Process: A Test for Uniformity and Consistency in Sentence Outcomes, 27 Justice Quarterly 362 (2010). An earlier Sentencing Commission study found that prosecutorial offices reward cooperation very differently as well. In other words, the uniformity offered by determinate sentencing schemes–treating similarly situated offenders similarly– does not cure the significant disparities introduced by unregulated cooperation.

Cycling world grapples with “snitching”

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Lest you think that “stop snitching” is confined to inner-city neighborhoods plagued by drug violence, check out this San Diego Union Tribune story, “Whistle Blower or Snitch?”, in which the sports world reacts to Floyd Landis’s doping allegations against other cyclists. The New York Times a few days ago reported that Landis “has agreed to cooperate with authorities in the United States.” The debate is raging over whether Landis did a good thing (exposed illegal doping) or a shabby thing (sold out his colleagues to evade responsibility for his own wrongdoing).

Although criminal charges have not been filed against Landis, he may still benefit in that regard. Offenders routinely cooperate in order to stave off criminal charges. Indeed, according to renowned white collar defense attorney Kenneth Mann, one of the biggest benefits of cooperation is the ability to shape the pre-indictment process. Landis’s new status as potential witness rather than target may be one of his biggest gains.

Shooting victim testifies in Philly

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A shooting victim’s willingness to testify against the drug dealer who shot him is big news in Philadelphia: Inquirer story here–Despite Threats, Victim Testifies in Phila. Court. That such testimony is perceived as rare (and courageous) reflects the widespread violent witness intimidation suffered by Philly urban residents, and documented in this Inquirer series: Witness Intimidation Crisis. As I’ve written elsewhere, witness intimidation is most pernicious when the threatened fear that the government won’t protect them. That’s why these legislative efforts to improve state witness protection programs are so important.

Do jurors ignore informant rewards?

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One of the central justifications for the use of compensated criminal witnesses is the idea that juries can evaluate informant credibility in ways that lead to fair and reliable outcomes. Specifically, the Supreme Court held that rewarding criminals for testimony is constitutional, relying in part on the procedural protections of discovery, cross-examination, and jury instructions. The idea is that the government can constitutionally reward its witnesses as long as the defense knows about it and the jury is properly instructed.

Recent psychological research throws some doubt on this idea. Dr. Jeff Neuschatz and a number of other psychologists published the following paper: The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, Law & Human Behavior 32 (2008): 137-149. They concluded that jurors who were told that a witness was getting a deal (and therefore had an incentive to lie) were just as likely to convict as jurors who didn’t know that the witness was being compensated. Moreover, the bare fact that an informant said there was a confession made the jury more likely to convict. From the article:

First, both college and community samples demonstrated that conviction rates were unaffected by the explicit provision of information indicating that the witness received an incentive to testify. Second, and consistent with the research on confession evidence in the courtroom, the presence of a confession, albeit a secondary confession, had a significant influence on mock juror conviction rates. More specifically, in every witness typeand across both college and community samples, mock jurors convicted significantly more often when there was a secondary confession provided by a cooperating witness than when no such witness had testified….

Even though the witness in the incentive condition had an enormous motivation to fabricate evidence (having been provided a situational incentive to testify), jurors appeared to ignore this information and render verdicts that were not significantly different across the Incentive and No Incentive conditions. The participants may not have recognized or considered the impact that an incentive might have on behavior and/or the willingness to provide accurate and truthful information. Furthermore, participants did not have significantly different ratings of truthfulness or trustworthiness across the Incentive and No Incentive conditions.

This is an important finding. The system assumes that jurors who are told that an informant is getting a deal will be less likely to believe the informant and less likely to convict. This study suggests not only that this isn’t so, but that just having a criminal informant testify to a confession significantly enhances the likelihood of a conviction.