Snitching

Criminal Informant Law, Policy, and Research

Informant Law

Reliability hearings in Washington state

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The Washington State House and Senate are considering bills that would institute pretrial reliability hearings in which judges would evaluate informant witnesses for unreliability before those informants could testify in front of juries. The House version would mandate the hearings; the Senate version gives judges discretion over whether to hold them or not.  News coverage from the Associated Press here.

Reliability hearings are one of many important tools available to combat unreliable informants and avoid wrongful conviction, including corroboration requirements, stronger and earlier discovery requirements, jury instructions, and limits on when and how informants can be used.  The Washington legislation thus represents an important first step.  It is motivated in part by the wrongful convictions of three young Washington residents several years ago who were convicted based on the testimony of a highly unreliable compensated informant.

9th Circuit panel intervenes in prosecutorial misconduct

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During appellate argument, a Ninth Circuit panel of federal judges lambasted the California Attorney General’s office for failing to discipline a prosecutor who lied about rewarding a jailhouse snitch.  Los Angeles Times story and video of argument (beginning at 16:00 minutes) here.  The panel, which included Judges Kozinski, Wardlaw and Fletcher, instructed the government attorney to go back to his office and tell the Attorney General to act on the matter.

Attention is turning to student informants

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20/20 did this special feature on “Logan,” the U. Mass student who died of a heroin overdose after becoming a drug informant for campus police: The Dangers of a College Student Becoming a Campus Police Drug Informant.  U. Mass canceled its informant program after a university working group issued this critical report.

Reason just posted this story about Andrew Sadek, a 20-year-old student at North Dakota State College of Science in Wahpeton, who was shot and killed after he agreed to work as an informant:  Busted Over $80 Worth of Pot, College Student Turns Informant, Then Turns Up Dead.

Florida might step up again as a leader in this arena.  Legislators have introduced bills that would ban the use of minors and college students as informants in buy-and-bust drug operations.

“Outrageous government conduct” in stash-house stings

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A federal judge has dismissed a conspiracy indictment against a defendant accused of participating in a drug robbery in which the ATF, working with a confidential informant, set up an elaborate and imaginary stash-house robbery sting.  Courts have traditionally been slow to invoke the “outrageous government conduct” doctrine, which protects defendants against government operations that are “grossly shocking” and that “violate the universal sense of justice.”  But these increasingly common stash-house stings have brought the issue to the fore.  See L.A. Times story here.

In this case, the Court distinguished between permissible government efforts to infiltrate criminal organizations, and “manufacturing crime” in order to generate convictions.   From the opinion:

“The Court finds that the Government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the Government’s actions outrageous.”

In particular, the Court objected to the fact that the ATF  knew nothing about the defendant Antuan Dunlap until he was brought into the scheme five days before the alleged robbery.

“Allowing after-the-fact knowledge . . . in a situation like this creates a perverse incentive for the Government. It encourages the government to cast a wide net, trawling for crooks in seedy, poverty-ridden areas—all without an iota of suspicion that a particular person has committed similar conduct in the past.”

While this case hinged on the fact that the government manufactured the robbery sting from whole cloth (the Court noted dryly that the total amount of drugs taken off the streets in such stings is “zero”), like many such cases the sting depended on a criminal informant who brought the defendants  to the government in the first place, and kept the operation going.  This model–of an undercover agent and/or an informant cooking up nonexistent crimes–may be coming in for new scrutiny.

Florida Supreme Court regulates criminal informant testimony

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In 2012, the Florida Innocence Commission made a series of reform recommendations in recognition of the “dangers of false informant and jailhouse snitch testimony.” The Florida Supreme Court has now amended the rules of evidence to reflect those recommendations. See In re: Amendments to Florida Rules of Criminal Procedure 3.220. The Miami Herald reported the story here: Florida’s high court puts brakes on snitches’ testimony.

The Florida Supreme Court . . . finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant’s criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant. The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, “constitute the basis for many wrongful convictions.” It was an unanimous decision. It was about time.

The new rules require greater disclosure of an informant’s criminal background, prior history of providing information to the government, and all their deals. Of particular importance, the Florida court included all informants who allege that they have evidence about defendant statements, not merely “jailhouse snitches,” i.e., those who happen to be in jail at the time. The new rule also requires disclosure of benefits that the informant “expects to receive” for his testimony, and it defines benefits broadly as “anything…[including any] personal advantage, vindication, or other benefit that the prosecution, or any person acting on behalf of the prosecution, has knowingly made or may make in the future.” This is an important counter to the fact that informants know that they are likely to be rewarded for providing information even if no one explicitly promises them anything up front. Thanks to EvidenceProfBlog for calling attention to this important development.