The New Jersey Attorney General issued Directive 2020-11 which requires all state prosecutors to seek supervisory approval before using jailhouse informants. That approval process requires, among other things, the collection of comprehensive information regarding the proposed informant witness. Supervisors must satisfy themselves that prosecutors have met their discovery obligations, and that “there is independent, credible evidence corroborating the informant’s testimony.”
In an early test of Illinois’s new reliability hearing requirement, a judge held that three men would be permitted to testify at trial after vetting them in a pre-trial informant reliability hearing. All three alleged that the defendant had confessed to them while incarcerated. The judge based his ruling in part on his finding that “no deal, no promises, no inducements or benefits were made by the state.”
The Connecticut Supreme Court has long required a special jury instruction for jailhouse informants. As the Court has written, “a trial court must issue a special credibility instruction when a jailhouse informant testifies because such informants have a powerful incentive, fueled by self-interest, to implicate falsely the accused, and, consequently, their testimony is inevitably suspect.’’ Last month in State v. Jones, the Court extended that requirement to an informant who alleged that the defendant confessed to him years before, when neither of them were in jail. The informant happened to be incarcerated when he approached police with the information. The state argued that the special instruction should only be applicable when an informant alleges a jailhouse confession, but the Court concluded that the risks of fabrication “do not depend on the location where the alleged false confession occurs,” since the informant had the same motive to lie, and because “false confessions are easy to fabricate, but difficult to subject to meaningful cross-examination.”
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.”
Japan is introducing American-style plea bargaining in which defendants can trade information about others in exchange for leniency. Some are concerned about the risks of snitching in general, and of wrongful convictions in particular. The law is more limited than the U.S. version, and only permits certain kinds of deals and only for certain kinds of crimes. From the Japan Times:
“Unlike the U.S. plea bargaining system, admitting to a crime does not warrant a deal with prosecutors in Japan. The new system, introduced in a revision to the criminal procedure law, allows suspects in such crimes as bribery, embezzlement, tax fraud and drug smuggling to negotiate with prosecutors. The bargaining only applies to crimes listed in the law, with murder and assault off-limits.”