Snitching

Criminal Informant Law, Policy, and Research

Experts

Mass. Supreme Court orders comprehensive jury instructions for all jailhouse informants

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The Supreme Judicial Court (SJC) issued an opinion today requiring that juries be given comprehensive, detailed, cautionary instructions whenever the government calls an incarcerated informant as a witness, regardless of whether the informant is testifying pursuant to a cooperation deal. The Massachusetts high court also affirmed the general admissibility of defense expert testimony at trial “discussing the research regarding the unreliability of incarcerated informant testimony.” The SJC is following in the footsteps of Connecticut which has long required special cautionary jury instructions regarding informant testimony, and whose Supreme Court decided in State v. Leniart (2020) that defense expert testimony regarding informants is admissible. Here is a link to the SJC decision Commonwealth v. Lacrosse. Some excerpts from the SJC opinion:

We begin by acknowledging that the defendant raises legitimate concerns about the reliability of the testimony of incarcerated informants. . . . [W]e are persuaded that a more comprehensive and specific instruction directed at all incarcerated informant testimony, regardless of whether the incarcerated informant is testifying pursuant to a cooperation agreement, would be beneficial in future cases. . . .

Indeed, we have [] modified the Connecticut instruction to direct juries to consider how incarcerated informants may have accessed the information apart from a confession by the defendant, such as through access to the defendant’s discovery materials or media accounts of the crime.

Defense counsel may also, of course, present expert witness testimony discussing the research regarding the unreliability of incarcerated informant testimony so long as the requirements of Daubert-Lanigan are satisfied for such testimony. See State v. Leniart, 333 Conn. 88, 144 (2019) (expert testimony on “the general characteristics of the marketplace for criminal informant testimony and the academic research indicating that unreliable informant testimony contributes to many wrongful convictions” admissible so long as it satisfies other requirements for expert testimony).

For a more detailed explanation of why juries need expert help assessing jailhouse informants, see this explainer in The Appeal.

U.S. Supreme Court decides case on expert admissibility

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The Supreme Court decided a case on Thursday that is not about informants but that could have implications down the road for informant expert testimony. In Diaz v. United States (June 20, 2024), the Court held that a federal agent could testify as an expert that “most drug couriers” know they are transporting drugs. The defendant, Delilah Guadalupe Diaz, claimed that she did not know that drugs were in the car that she was driving. The Court reasoned that the agent was not testifying explicitly about what Diaz knew or did not know — that would have been prohibited by the Federal Rules of Evidence, Rule 704(b)— but only what “most people” in that group know. The majority rejected the dissent’s argument that the expert “functionally” stated an opinion about Diaz’s state of mind, because “[t]hat argument mistakenly con­flates an opinion about most couriers with one about all cou­riers.”  Rather, the Court held that “an expert’s conclusion that most people in a group have a particular mental state” is not an opinion about a particular individual in that group.

Diaz potentially enhances the admissibility of defense expertise regarding informants, specifically about whether informants know that they will receive benefits in exchange for the information they provide. As I and many other scholars have pointed out, most informants know that they will be rewarded for incriminating other people, even if the government has not expressly or formally promised them anything up front.  Nevertheless, the government often maintains that informants come forward for no reward, and informants will often tell the jury that they do not expect any reward.  In a similar vein, prosecutors often reassure juries that informants are reliable because lying informants will fear prosecution for perjury, but most informants (as well as lawyers and judges) know that such prosecutions are extremely rare. Expert testimony on what “most informants know” could thus be helpful to juries in deciding whether informants should be believed.

Courts are typically more willing to allow government experts than defense experts in criminal cases.  Indeed, the National Academies of Sciences issued a report in 2009 worrying that “trial judges rarely exclude or restrict expert testimony offered by prosecutors.” But Diaz cuts both ways. In her concurrence, Justice Ketanji Brown Jackson emphasizes that the decision is “party agnostic” and that “[b]oth the Government and the defense are permitted [] to elicit expert testimony ‘on the likelihood’ that a defendant had a particular mental state.”

Here is a link to an explainer about informant expert testimony that I wrote for The Appeal.  And here is a link to my colleague Professor Noah Feldman’s op-ed arguing more generally that Diaz was wrongly decided, and that it impermissibly waters down the prosecution’s obligation to prove its case beyond a reasonable doubt “because [the decision] invites the jury to conflate abstract statistical probabilities with the specific circumstances of the individual case.”

Connecticut Supreme Court issues decision on informant experts

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The Connecticut Supreme Court has decided that informant experts like myself are admissible when they can provide specialized information to jurors about informant unreliability, namely, information that jurors would not otherwise know based on common sense or from the popular culture or general media.  The Supreme Court upheld the exclusion of my testimony in this particular case, but noted that such testimony is not per se inadmissible, and it imagined other scenarios in which expert testimony might be admitted. The 2019 case, State v. Leniart, overturned this 2016 decision, in which the Connecticut Court of Appeals held that the trial judge made a mistake in preventing me from testifying before the jury.

I explain what the Leniart decision means in more detail in this piece for The Appeal: Why Juries Need Expert Help Assessing Jailhouse Informants.  In particular, I explain why jurors are unlikely to understand the full scope of informant practices, fabrications, and motivations to lie, and therefore would be helped by hearing expert testimony:

“Informants are highly motivated to give persuasive, believable testimony in exchange for their own freedom. They can also receive money, drugs, sex, food, and phone privileges when they cooperate with jail officials. Some scour the newspapers, pay other inmates for information, or get family members to pull court records so that they can come up with incriminating testimony against their cellmates. Some jurors may already know about these sorts of practices; many will not.”

Professor Robert Bloom on jailhouse informant expert testimony

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Professor Robert Bloom is an expert on informants who has testified in numerous cases.  He has now authored this article,What Jurors Should Know about Informants: The Need for Expert Testimony, Mich. St. L. Rev. (forthcoming 2019).  Here is the abstract:  

  With the advent of DNA exonerations, the data would indicate that many individuals have been wrongly convicted. In looking at the causes of the exonerations, nearly 20% have involved testimony by accomplices and jailhouse informants. The questionable credibility of these individuals has long been recognized by courts and legislatures. Reforms in this area include, enhanced jury instructions, pre-trial credibility hearings, and corroboration before the testimony can be introduced.  

  This article argues the efficacy of expert testimony to further assist jurors in measuring the credibility of these witnesses. Although the use of experts has largely been disfavored by courts, there has been a gradual movement to use experts for eyewitness identifications, the major cause of exonerations. The article proposes a similar movement for informant testimony.

Professor Bloom is also the author of the book Ratting: The Use and Abuse of Informants in the American Justice System (2002).