Snitching

Criminal Informant Law, Policy, and Research

Incentives & Payments

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.”

Deep dive into informant practices in Cincinnati

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According to a recently released year-long investigation by the Cincinnati Enquirer, local police and prosecutors quietly used informants in dozens of homicide cases, many of which later fell apart. See Enquirer investigation: Cincinnati homicide cases unravel after deals with informants. Here’s just one example from the article:

Before his violent death in 2012 – prosecutors say he was shot for “being a snitch” – [Quincy] Jones became a prolific police informant, joining a network of informants and cooperating witnesses who for years helped Cincinnati law enforcement close homicide cases. The informants sometimes testified in multiple cases and, like Jones, worked with detectives and prosecutors who vouched for their reliability. But an Enquirer investigation found several of those cases later unraveled, raising the possibility that unreliable informants helped send innocent people to prison and allowed others to get away with murder.

Jones began cooperating in 2008 when he was charged with multiple murders. He fled to Seattle; when he was brought back to Cincinnati he met with Police Detective John Horn and offered to cooperate. As the article describes it, “On the day Jones signed the deal, prosecutors dropped one of the murder charges against him and reduced the other to involuntary manslaughter. [] Judge Beth Myers then sentenced him to four years in prison, far less than the 20 years to life he would have faced with a murder conviction.” Two years later Jones cut another deal which permitted him to walk free in 2010.

The article also reveals the kinds of sleight-of-hand used to conceal informant deals from defendants, courts, and the public:

Because [Jones’s] deal was confidential, defense attorneys, judges and juries in future cases wouldn’t know its terms. They also wouldn’t know that if Jones went back on the deal, all the original charges, including a possible life sentence, could be reinstated. Of the 12 homicide cases Jones cooperated on, The Enquirer found, he testified in court about at least five. Each time, Jones said he’d been promised nothing in exchange for his testimony. 

According to his written plea deal, that was true. Because the agreement didn’t identify specific cases, Jones could say his testimony in those cases wasn’t connected to his plea deal. 

[Detective] Horn, who is now retired, said that’s a common arrangement. “You haven’t done anything for me until, you know, you do something for me,” Horn said. “There’s never been any promises made.” 

Paying jailhouse snitches with conjugal visits

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A Miami prosecutor has resigned from a death penalty case after Judge Andrea Ricker Wolfson found evidence of various types of “witness testimony manipulation” and “severe recklessness” by prosecutors stretching back decades. AP story here: Veteran Miami prosecutor quits after judge’s rebuke over conjugal visits for jailhouse informants, and ABA Journal story here.

As I have written many times, there are almost no limits on the kinds of rewards that the government can offer an informant in exchange for information. Typically it is the failure to disclose the benefits, not the propriety of offering the benefits themselves, that constitutes prosecutorial misconduct.

Uncertainty and risk in the informant market

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This article from the New Yorker captures the desperation and broken promises that so often go with being an informant, and how informants are so heavily dependent on their handlers for protection and reward. The article is entitled “What do we owe a prison informant?” It chronicles the dangerous work performed by an informant referred to as “Cyrus” trying to work off part of his prison sentence, and how, notwithstanding the high value of his cooperation, he was never rewarded as promised. From the article:

Although [DEA Agent] J.J. didn’t make any specific offers of a shorter sentence, his relationship with Cyrus was predicated on assurances that Cyrus would benefit from helping the D.E.A. But J.J. had little control over what happened to him—Cyrus’s fate was in the hands of Georgia’s State Board of Pardons and Paroles, which is not beholden to anyone, and certainly not to the D.E.A. The way Cyrus and his family see it, Cyrus risked his life for years with an understanding that he would get leniency in return. And then, he says, he was abandoned.

“Snitch” visa often promised but rarely given

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The National Association of Criminal Defense Lawyers (NACDL) produced this report “Shining a Light on the “S” Visa: A Long History of Unfulfilled Promises and Bureaucratic Red Tape.” An S-visa, sometimes referred to as a “snitch visa,” offers temporary residency status to immigrants who “are willing to supply…critical reliable information” to U.S. law enforcement. 8 U.S.C. § 1101(a)(15)(S).

The NACDL report reveals how often the government uses the S-visa to entice immigrants into becoming informants, sometimes at great risk to themselves and their families, even though almost none ever actually receive the visa. The phenomenon is sometimes referred to as the immigration relief “dangle.” See also this story from the Intercept: “Federal Informants are Often Promised Visas. They Rarely Materialize.”